On Tuesday, July 15, 2025, the U.S. Court of Appeals for the 4th Circuit ruled in favor of the state of West Virginia, upholding the state’s law that disallows the usage of mifepristone to perform an abortion within the state (with rare exceptions). GenBioPro, a manufacturer of the abortion drug, challenged the law with the argument that the FDA’s authority to regulate prescription drugs, including the abortion drug mifepristone, would preempt state law.
Erin Hawley, Senior Counsel at Alliance Defending Freedom who defended West Virginia’s law said of the decision, “We’re pleased the 4th Circuit agreed that the 2007 amendments to the Federal Food Drug and Cosmetic Act do not forbid the states from setting minimum safety standards for high-risk drugs or enacting legislation that protects life.”
West Virginia Governor Patrick Morrisey, who initially represented the state as Attorney General, responded to the ruling:
“Big win out of the 4th Circuit today. I defended this law as Attorney General and am proud to see a victory in this case. West Virginia can continue to enforce our pro-life laws and lead the nation in our efforts to protect life. We will always be a pro-life state!”
This decision is excellent news for states that have adopted pro-life laws curbing the usage of mifepristone following the Dobbs ruling that returned the issue of abortion to elected representatives. Supporting the authority of states to enact laws in areas where Congress has not acted, Judge Wilkerson (author of the majority opinion) wrote, “For us to once again federalize the issue of abortion without a clear directive from Congress, right on the heels of Dobbs, would leave us one small step short of defiance.”
Later in his opinion, Wilkerson said, “Just after the Supreme Court restored the states’ traditional authority to regulate abortion, GenBioPro would have us wrest it right back from them. Appellant attempts to assemble a preemption theory out of statutory scraps and fragments that do nothing to hide the fact that the theory is but a fig leaf for an assault on the Dobbs decision. We are asked to infer sweeping field preemption over a broad swath of high-risk drugs in the face of a saving clause indicating that Congress chose nothing of the sort. We are further asked to prevent the states from protecting the health and safety of their citizens whenever their laws touch upon high-risk drugs in any way. Not only that, but we are asked to do all this under what are at best the fuzziest set of federal instructions when the Supreme Court has insisted upon congressional clarity. If Congress wishes to preempt laws like West Virginia’s, why hasn’t it come right out and said so? For us to sally forth and strike down this statute in the face of all these obstacles invites certain reversal.”
Tuesday’s decision may be appealed to the U.S. Supreme Court. Our team at NC Family will continue to monitor this case and share important information with you if this case progresses further.