A federal judge said during a Monday hearing that he’s leaning towards ruling in favor of a company that makes generic mifepristone in its quest to prove it has standing to sue over West Virginia’s abortion ban.
The West Virginia officials are trying to get the case dismissed, arguing that the company is rooting its argument in claims about speculative economic damage — that it does not claim that it ever sold mifepristone in West Virginia or describe any plans to do so.
Judge Robert Chambers, a Clinton appointee in the southern district of West Virginia, said GenBioPro, the mifepristone manufacturer, is winning him over as he considers the arguments.
“To be honest with you — because I want you to be able to respond — the closer we’ve gotten to this hearing the more inclined I am to conclude that there is injury in fact, that they don’t have to have that level of contact in sales within the state that they might have to have for some other purpose,” Chambers said to one of the lawyers for the West Virginia defendants.
He detailed that GenBioPro has been in the business of making generic mifepristone for a few years, that its markets seem to have expanded as the Food and Drug Administration lifted restrictions on mifepristone’s prescription and distribution and that the drug is used in the vast majority of medical abortions.
“All of that seems to me to start tipping the balance much more towards the plaintiff in a finding that this is not a generalized grievance, this is not a speculative economic loss, this is something pretty direct,” he added.
Chambers said he would try to issue a ruling on the standing question in the next several days, and that if he finds GenBioPro to have it, indicated that he’d like to have the parties back in to argue the merits of the case in mid- to late-May.
GenBioPro filed this lawsuit against West Virginia in January, after the state adopted a more stringent abortion ban post-Dobbs. It’s the first of its kind to move forward, though GenBioPro had filed and then later withdrawn a lawsuit against Mississippi last August. I couldn’t tell you what the differences were between those two suits, but you can find out more about the WV one here.
Two things to note here. One is that GenBioPro also recently filed a lawsuit in Maryland to protect existing access to mifepristone, as a hedge against what SCOTUS would do with the Kacsmaryk ruling. That suit is still in its initial stages. And two, I would think that a favorable ruling here, if it withstands appeals, would open the door to a similar challenge in states like Texas that have equally draconian laws. Again, I don’t know why the Mississippi lawsuit was withdrawn, and I definitely don’t have the legal knowledge to say with any degree of confidence how other states may or may not be like West Virginia in this regard. I am saying that it’s a possible avenue of attack, and I’m sure folks here will be keeping an eye on it. Given the likely timeline, a much better route would be winning enough in 2024 to pass federal laws protecting abortion access more broadly. But it never hurts to have some redundancy.