As West Virginia lawmakers consider what the state’s abortion policies will be going forward, one of the big issues will be abortion drugs.
Attorney General Patrick Morrisey legal review of how the Supreme Court’s decision that overturned Roe v. Wade would affect state laws concludes that West Virginia could regulate the prescription of drugs like mifepristone.
That could land West Virginia in a legal battle with the federal government, but the attorney general’s office concludes the state would be able to defend its regulatory oversight.
“Clearly, the state retains the power of the police to regulate the manner in which drugs may be used by medical professionals,” the attorney general’s office wrote.
It’s just one of the political decisions — and possible court battles — after the Supreme Court’s Dobbs decision that left abortion laws to the states.
“States cannot ban mifepristone due to disagreement with the FDA’s expert judgment on its safety and efficacy,” the US Attorney General said. Merrick Garland said shortly after the Supreme Court decision.
The Food and Drug Administration has approved the use of mifepristone and misoprostol during the first 10 weeks of pregnancy. Both drugs have received federal approval for doctors to prescribe online and ship to patients by mail.
Mifeprestone and misoprostol are used together induce a physical reaction such as an early miscarriage. Medical abortion is more than half of all abortions in the United States, according to the Guttmacher Institute, a research organization focused on advancing reproductive health policy.
The West Virginia Attorney General concluded that the states would have multiple legal arguments in any legal clash with federal authorities. The review cited state and local authority to regulate health and safety issues.
“And ultimately, federal preemption would give the power to regulate to unelected bureaucrats, rather than the ‘representatives of the people’ that Dobbs preferred,” the attorney general’s office concluded.
Anne Lofaso, a law professor at West Virginia University, agreed that states could write laws banning medical abortions. “So it could do that under Dobbs, and in fact if you look at West Virginia law as it is right now, I think it’s probably covered,” Lofaso said last week on “Talkline.” from MetroNews.
Noting the criminal penalties under West Virginia law, Lofaso said she would be concerned about the risk of prosecution for a pregnant woman taking abortion drugs. “It could have a chilling effect,” she said.
There is legal confusion surrounding the United States Supreme Court’s decision to overturn Roe v. Wade. @AnneMarieLofaso and @HoppyKercheval get through some of the confusion. LOOK: https://t.co/yCFQ3nDJuy pic.twitter.com/8jIwkH5fAs
— MetroNews (@WVMetroNews) June 27, 2022
In West Virginia, state law currently restricts abortion drugs.
In particular, a law applying criminal penalties for abortion dating back to the 1800s is widely credited with having been revived after the Supreme Court ruling.
The old law specifically refers to any drug that could cause an abortion or miscarriage. The criminal law on abortion said:
Whoever administers or causes a woman to take any drug or other thing, or uses any means, with intent to destroy her unborn child, or to cause an abortion or miscarriage, and who will thereby destroy such child, or produce a such abortion or miscarriage, shall be guilty of a felony and, on conviction, shall be confined in the penitentiary not less than three years nor more than ten years; and if that woman dies because of such an abortion performed on her, that person will be guilty of murder. No one, because of an act mentioned in this article, will be punishable if this act is done in good faith, with the intention of saving the life of this woman or this child.
The West Virginia Osteopathic Medical Association released a statement following the Supreme Court’s decision to express its continued support for the safety and sanctity of the patient-physician relationship. The statement was made in conjunction with the American Osteopathic Association:
“We denounce any federal or state legislative or administrative action that interferes with this relationship. We also condemn any attempt to criminalize or impose civil penalties on physicians for providing medical-level care.
In response to a question from MetroNews, the West Virginia Osteopathic Medical Association said it did not want to comment more specifically on abortive drugs.
But the original statement concluded, “Medical decisions should be made between a patient and their physician,” Giaimo and Klauer said. “Anything that interferes with or impinges on this essential and fundamental principle endangers patient care.”