(DAILY WIRE) — States can’t weaken federal safety standards, but they can absolutely strengthen them.
In a landmark decision this week, the U.S. Court of Appeals for the Fourth Circuit upheld West Virginia’s near-total ban on chemical abortions — a major win for federalism, health and safety, and the pro-life cause. This ruling affirms what we at March for Life have long believed: states have both a right and a responsibility to protect life and public health, even when it means outpacing the federal government in doing so.
The key question before the court was this: if the federal government, through the FDA, has approved a drug for use nationwide, can a state nonetheless decide to further restrict or even ban that drug within its own borders?
The Fourth Circuit — not a court known for reaching “conservative” outcomes — answered with a resounding “yes.” And that answer has profound implications, both for abortion policy and for the authority of the states to chart their own paths in matters of health and safety.
Let’s break it down.
Plaintiff GenBioPro — a manufacturer of generic mifepristone — argued that the FDA’s approval of the drug should preempt West Virginia’s more stringent restrictions. In other words, GenBioPro wanted the federal stamp of approval for mifepristone to override the state’s pro-life laws.
The court rejected that argument.
The majority pointed out that under our federalist system, states have the authority to regulate matters of health and safety. Congress, therefore, when granting the FDA authority over drug regulation, “intended to create a regulatory floor, not a ceiling.”
In other words, states cannot weaken federal safety standards – but they absolutely can strengthen them.
This matters because abortion drugs like mifepristone are not like ordinary medications. They have the power to end a human life — and increasingly, they do so without any in-person medical oversight. That’s not just a pro-life concern — it’s a basic medical and ethical concern. Chemical abortion carries significant risks, including hemorrhage, infection, and even death, particularly when used outside a clinical setting.
West Virginia’s legislature recognized those risks and chose to act, including chemical abortions in its law prohibiting abortion in most circumstances. Their law protects unborn children, yes. But it also protects women from the harms of a deregulated chemical abortion industry. The Fourth Circuit’s decision affirms that West Virginia is fully within its rights to do so.
On its face, this is a case about “preemption,” a legal doctrine that determines when federal law overrides state law. But the Fourth Circuit reminds us that preemption isn’t a magic wand that erases the traditional powers of the states every time it’s waved. Preemption applies only when an intention to preempt state authority has been clearly expressed by Congress — and in the case of abortion pills, it hasn’t been.
The court concluded that in defining the FDA’s regulatory authority, Congress never said states must surrender their own traditional authority over abortion regulation or drug safety. And in the post-Dobbs era, the Supreme Court has made clear that regulating abortion is now a matter for the elected representatives of the people, including at the state level.
The outcome of this case about the preemption doctrine is therefore not merely a legal technicality. It’s a moral and political turning point.
The pro-life movement has always believed that the people, through their elected representatives, should have the power to restrict abortion in their communities. Dobbs confirmed this vision. And the Fourth Circuit’s ruling helps make that vision a reality. States that want to defend life and prioritize women’s safety can move forward confidently, knowing they are not hamstrung by FDA decisions shaped by politics, ideology, or abortion industry pressure.
To be clear, this decision affirming that states are free to take a more restrictive approach to chemical abortions does not let the FDA off the hook. We continue to urge the FDA to perform its own rigorous health and safety analysis of mifepristone, consistent with the responsibilities given to it by Congress and its obligations to the American people.
The court says that FDA regulation is a “floor” upon which the states can build – and that floor should be higher than it currently is. But our federalist system of government requires that states be empowered to determine that the interests of their citizens are best served by laws that are more pro-life than the federal “floor,” and then to act accordingly.
Thanks to the leadership of West Virginia Governor Patrick Morrisey, West Virginia Attorney General JB McCuskey, and legal advocates like Alliance Defending Freedom, this case sets a precedent that will impact legislation and litigation across the country.
We at March for Life are encouraged — but not complacent. We know the abortion industry and profit-driven drug manufacturers will continue to fight tooth and nail to eliminate any limits on chemical abortion, including in states that have chosen to protect life. But with this ruling, the courts have affirmed what is both constitutional and common sense: states can lead the way in defending life.
This is not just a victory for West Virginia. It’s a victory for every state that dares to protect its citizens — born and unborn — with the boldness to stand against a one-size-fits-all federal agenda.
Jennie Bradley Lichter is the President of March for Life and former Deputy Director of the White House Domestic Policy Council.
The views expressed in this piece are those of the author and do not necessarily represent those of The Daily Wire.