A US Supreme Court decision upholding a California pork production law could be the key to a lawsuit challenging West Virginia’s ban on a popular abortion-inducing drug.
The state’s ban on mifepristone—one of a two-drug regimen used to terminate a pregnancy during its earliest stage—is at issue in the case before the US District Court for the Southern District of West Virginia.
GenBioPro Inc., which makes a generic version of the drug, sued state officials claiming that the state law violates the US Constitution’s commerce clause by interfering with interstate sales of a product that’s been approved by the US Food and Drug Administration and is subject to a complex regulatory scheme involving its distribution.
Judge Robert C. Chambers asked the parties to address whether the latest commerce clause ruling by the nation’s top court either supports the drugmaker’s claim or allows the state’s regulation. The high court upheld a California law May 11 that forbids in-state sales of pork meat that comes from pigs that are “confined in a cruel manner.”
A six-justice majority held in National Pork Producers Council v. Ross that the law didn’t violate the commerce clause because it didn’t unduly burden interstate commerce or discriminate against out-of-state pork producers.
The defenders of West Virginia’s near-total mifepristone ban said the commerce clause challenge should end the same way. As the Supreme Court affirmed, there’s no per se rule against state laws that affect matters beyond state lines, the defendants said in their May 19 brief. A law having extraterritorial effects doesn’t automatically violate the commerce clause, they said.
States, moreover, can lawfully ban products sold in interstate commerce, such as fireworks and plastic grocery bags, the defendants said. In any event, West Virginia hasn’t banned mifepristone. It has merely limited the drug’s use to the first eight weeks for pregnancies that resulted from sexual assault, they said.
GenBioPro contended that West Virginia’s Unborn Child Protection Act violated the commerce clause by regulating mifepristone outside its borders and by “functionally banning an article of commerce.”
West Virginia’s law imposes “a severe burden on interstate commerce” by disrupting “the market for a drug that Congress subjected to nationally uniform federal regulation. The state law also derivatively harms women in the state by depriving them of access to an essential health-care product, it said.
National Pork, moreover, is distinguishable because there wasn’t a compelling need for national uniformity with respect to regulating pork that there is with mifepristone, GenBioPro said. The drug is within a “small subset” of products subject to a Risk Evaluation and Mitigation Strategy that governs its distribution, the drugmaker said. This system “dictates in detail how such drugs move through interstate commerce, from packaging through distribution,” it said.
The burdens and harms imposed by the ban outweigh the state’s interests, GenBioPro also said in its May 19 brief. The state officials countered that even if this balancing test applied, the drugmaker didn’t meet it.
“Nothing in GenBioPro’s complaint alleges discrimination against interstate commerce,” the state officials said. West Virginia sought to ban nearly all pill-induced abortions regardless of where the pills are made, they said. Moreover, no harms outside West Virginia were alleged, they said.
Powell & Majestro PLLC; Kellogg, Hansen, Todd, Figel & Frederick PLLC; Arnold & Porter Kaye Scholer LLP; and Democracy Forward Foundation represent GenBioPro. The West Virginia Attorney General’s Office and Alliance Defending Freedom represent the state defendants.
The case is GenBioPro, Inc. v. Sorsaia, S.D. W.Va., No. 23-cv-58, supplemental briefs filed 5/19/23.
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