Judge Says He’s Leaning Towards Abortion Drug Maker As West Virginia Tries To Toss Lawsuit 

Mifepristone (Photo by Bill Grenblatt/Liaison). Getty Images
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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.

Chambers issued a favorable ruling for GenBioPro late last week when he denied West Virginia’s attempt to put the lawsuit on ice until another case on mifepristone — in which the Supreme Court just ordered a stay of lower court rulings that would have reimposed onerous restrictions — came to its conclusion. 

He savaged Judge Matthew Kacsmaryk in the process, writing that his widely panned ruling “has been met with broad criticism from legal commentators. Therefore, the Court accords that opinion little weight.”

GenBioPro’s suit is one of a few making their way through the courts at the moment that seek to expand access to mifepristone. The company is also suing the FDA in Maryland to not revoke or alter its approval, trying to create a backstop should the Supreme Court ultimately decide to restrict the drug. There’s also a case in Washington state where a coalition of blue state attorneys general is trying to expand access to the drug within their jurisdiction; the judge in that case instructed the states involved in keep mifepristone accessible as usual earlier this month. 

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Notable Replies

  1. “Lawsuit on ice”
    We just need some Mifepristone antifreeze.

  2. Hmmmm…Clinton Appointee

  3. If the docs in TX have standing because one day they might have to treat someone who had the rare bad reaction from the medicine, then the actual maker of the drug has standing where sale of the medicine is potentially outlawed. The judge should hoist WVa on the Kacsmaryk petard.

  4. This is a banner year for 1L law students who need a crash course in standing.

    speculative economic damage

    The economic damage is real. Mifepristone is available for reasons other than an abortion. I like where this judge’s thinking is headed.

  5. Though it’s somewhat self-defeating to use the decision that we believe is completely erroneous. Using Kacsmaryk’s poorly* reasoned decision would help validate the reasoning.

    * to put it mildly

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