(U.S. District Court for the Southern District of W.V., August 24, 2023) A federal district court in West Virginia found that federal law approving the abortion drug Mifepristone for use in pregnant people up to 10 weeks gestation did not preempt the State’s law that prohibits most abortion but that for abortions permitted under the State’s law, federal law does preempt the requirement that Mifepristone only be provided at an in-person visit. West Virginia prohibits abortion at all stages of pregnancy, except in the case of a “nonmedically viable fetus”, ectopic pregnancy, or medical emergency. Survivors of rape or incest may receive abortion care for up to 14 weeks gestation if they file a police report or get medical treatment for the rape or incest. Regardless of the reason for the abortion, West Virginia law prohibits access to Mifepristone by telehealth despite the FDA’s protocols that permit prescribing Mifepristone via telehealth. The Court found that
FDA approval of Mifepristone for up to 10 weeks gestation does not mean that a state cannot restrict abortion in any way during that 10-week period. But the Court did find West Virginia’s prohibition on telehealth for lawful use of Mifepristone conflicts with FDA’s protocols for the drug and frustrates Congress’ objectives in giving FDA authority to address prescription drug risks. Therefore, the telehealth prohibition was struck down as preempted by federal law. Read the full Opinion here.