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Abortion Pill Maker Moves to Challenge Mississippi Trigger Law

July 22, 2022, 4:50 PM

Generic mifepristone maker GenBioPro seeks to challenge a Mississippi anti-abortion law set into motion by the US Supreme Court’s reversal of Roe v. Wade, claiming the new state of affairs is keeping its product off local shelves.

Mississippi’s trigger law bans the majority of abortions within the state. That includes abortions relying on pills approved by the Food and Drug Administration like mifepristone, which is used to end pregnancies up to 10 weeks.

GenBioPro is now asking the US District Court for the Southern District of Mississippi to amend a complaint it filed in 2020 against the state to address the trigger law. At the center of the case is whether Mississippi’s mifepristone restrictions, which were in effect before the high court’s ruling, trump FDA regulations over the pill.

The trigger law “prevents GBP from selling its product in Mississippi,” the company said in a court filing. “GBP did not directly address the Trigger Law—which was not in effect at the time—in its original Complaint. GBP thus seeks leave to timely address the recent change in Mississippi’s abortion regulations.”

GenBioPro’s request comes as states across the US grapple with the changing legal landscape for abortions spurred by the Supreme Court.

The US Court of Appeals for the Eleventh Circuit this week gave Georgia the green light to ban abortions after a fetal heartbeat is detected. An abortion ban in Louisiana meanwhile, was recently blocked by a state judge while a challenge goes to trial.

Abortion medication is one of several battlegrounds opened up by the Supreme Court’s ruling. The Justice Department has said that states can’t block mifepristone due to disagreements with the FDA over its efficacy and safety. That doesn’t mean states won’t find other means to block access to the drug.

In the Mississippi case, GenBioPro argued that FDA dispensing and prescribing regulations for the abortion pill preempt state requirements, including having a licensed physician prescribe the drug in person.

Mississippi State Health Officer Thomas Dobbs argued the court should toss the case. GenBioPro failed to allege it suffered a concrete injury and is trying to assert third-party health-care and womens’ legal rights without having the standing to do so, he said in a motion to dismiss.

GenBioPro said Thursday it wants to add to its complaint “the conflict the Trigger Law amplifies between Mississippi’s regulations and the FDA’s intended access to and approved regimen for mifepristone.”

“The Trigger Law prohibits the use of mifepristone to terminate a pregnancy in all but the narrowest of circumstances. The ban forecloses GBP from selling its product in Mississippi and creates an even more stark conflict with the FDA’s approved regimen for mifepristone,” the company said.

The case is Genbiopro, Inc. v. Dobbs, S.D. Miss., No. 3:20-cv-00652, Motion filed 7/21/22.

To contact the reporter on this story: Ian Lopez in Washington at ilopez@bloomberglaw.com

To contact the editor responsible for this story: Alexis Kramer at akramer@bloomberglaw.com