In positive legal news, a federal court ruled last week that states can regulate abortion drugs within their states. The Federal 4th Circuit Court of Appeals upheld West Virginia’s Unborn Child Protection Act which, among other things, prohibits the use of abortion drugs for elective abortions in most cases. 

GenBioPro, one of the two manufacturers of abortion drugs, filed suit challenging West Virginia’s law claiming that the law severely limited its pool of potential customers in the state. GenBioPro also argued that the FDA has the sole authority to regulate drugs. The 4th Circuit found that while Congress did give the FDA the task of overseeing drug safety and effectiveness, Congress did not intend for the FDA’s power to be exclusive. 

Emphasizing states’ sovereign power to provide for the health, safety, and welfare of its citizens as well as states’ traditional role of regulating the practice of medicine within their state,  the court made clear that the FDA’s power does not preempt states’ power. The court found that states can impose stricter regulations than the FDA, but states cannot provide for less restriction than what the FDA requires. 

The 4th Circuit called GenBioPro’s arguments “a fig leaf for an assault on the Dobbs decision” recognizing that the Supreme Court in Dobbs returned the issue of abortion to the states and that states have a long history of regulating abortion. 

What does this mean for Louisiana?

Like West Virginia and many other states, Louisiana prohibited elective abortion, including by abortion drugs, in most cases after the Dobbs decision in 2022. Since then, Louisiana was the first state to impose stricter restrictions on abortion drugs to account for the growing misuse and reckless distribution of abortion drugs in our state. Several other states are now pursuing similar laws. The 4th Circuit decision affirms that states not only have the right to regulate abortion but also have the right to set stricter regulations than what the FDA requires. 

Of course a similar challenge to Louisiana’s laws would go through the 5th Circuit Court of Appeals, but the 4th Circuit’s decision sets a valuable precedent that other courts can point to in upholding Louisiana’s protections for women and the unborn.