District Court Misapplies Implied Preemption in Medication Abortion Case

Litigation attorney Eric Alexander authored an article for Drug & Device Law that followed a challenge by GenBioPro, the only U.S. manufacturer of (generic) mifepristone, which contends that a series of West Virginia laws violate both the Supremacy Clause and Commerce Clause due to that state's restrictions on the use of medications that the FDA has approved specifically for abortion. The court offered a preemption analysis that dismissed both obstacle and conflict preemption, a decision that hinged on the state's laws that "restricted" the use of mifepristone, rather that banning and criminalizing the use of the drug. Mr. Alexander explains the reasoning behind the courts' determinations and contends that it has misapplied implied preemption throughout the case thus far. 

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