Can Capitalism Save Abortion Access?

Maureen Farrell has worked as a midwife in West Virginia for two years, and as a doula for six. But this fall, she noticed a dramatic change in her day-to-day: more clients than ever seeking miscarriage support — not because more of them were experiencing miscarriages, but because of the way those patients are being treated since September, when lawmakers in West Virginia voted to ban abortion in virtually every circumstance. 

“The actual medical care they received is the same. But the attitude of providers surrounding it is, understandably, very different,” Farrell says. Under West Virginia’s new law, providers are subject to criminal penalties, including jail time, for performing abortions. And because mifepristone and misoprostol — the same two-drug regimen used to terminate unwanted pregnancies — is prescribed to patients experiencing miscarriages, some doctors are wary of dispensing it even under totally legal circumstances. Farrell says one client of hers was forced to submit to three separate ultrasound appointments confirming her pregnancy was not viable before doctors finally prescribed her the medication she needed to manage her symptoms. “Everybody’s nervous — and the patients pay for it,” Farrell says. 

Doctors’ reluctance to dispense the FDA-approved drug is reflected in the data: GenBioPro, one of the manufacturers of generic mifepristone, says it has seen a 100 percent decline in sales of the abortion pill since West Virginia’s ban went into effect. The company’s sales in seven other states — Alabama, Arkansas, Idaho, Kentucky, Missouri, North Dakota, and Oklahoma — flatlined in 2022 as well, a spokesperson for the company tells Rolling Stone. 

Those figures are part of the basis of a lawsuit the company filed on January 25, challenging the constitutionality of West Virginia’s abortion ban. In their suit, GenBioPro asserts the ban “destroys the national common market and conflicts with the strong national interest in ensuring access to a federally approved medication to end a pregnancy.”

The potential stakes of the suit are high: if the pharmaceutical company wins, states that have restricted access to the abortion pill may be forced to allow access to it. And if West Virginia prevails instead, states may feel emboldened to restrict other treatments and medications, like vaccines, says Skye Perryman, president of the legal advocacy group Democracy Forward and legal counsel to GenBioPro. 

“You can imagine the implications this would have in the country, if states were able to maintain their own conflicting drug regulation systems,” Perryman says. “If laws like the one in West Virginia were able to stand, you would have a situation where states could regulate pharmaceutical products in ways that conflict with the safety and efficacy determinations of FDA, and that conflict with the judgment of Congress.”

GenBioPro’s case is just one of several brewing legal battles over the availability of the abortion pill, the method used for more than half of documented abortions in the U.S. in recent years. The Food and Drug Administration announced in January it would allow the abortion pill to be dispensed by pharmacies, rather than administered under the direct supervision of a physician, and on Wednesday, Republican attorneys general from 20 states sent letters to the retail chains Walgreens and CVS threatening legal action if the retailers opt, under the FDA’s new guidelines, to fill mifepristone and misoprostol prescriptions by mail. 

Meanwhile, in Texas, a consortium of Christian medical societies has sued the FDA, demanding the agency withdraw its 22-year-old authorization of mifepristone altogether. Reproductive rights advocates are concerned the Trump-appointed judge assigned to the case may find the group’s dubious argument persuasive and halt, for an indefinite period, distribution of the abortion pill nationwide.

For those who would like to see abortion expanded nationwide, there is encouraging precedent for GenBioPro’s lawsuit against West Virginia: the most relevant case is from 2014, when the state of Massachusetts sued the manufacturers of a controversial opioid called Zohydro ER in an effort to stop distribution of the drug within the state. A federal judge swatted down Massachusetts’ efforts to regulate the drug, declaring it “would undermine the FDA’s ability to make drugs available to promote and protect the public health.” (Zohydro ER was, coincidentally, pulled from the market just this month.)

GenBioPro’s lawyers are arguing, essentially, that abortion bans are bad for business. “We now see that extremism is affecting not just people and their healthcare — but also the ability of companies to operate in a national market,”  Perryman says. It’s an argument one could see the most pro-business Supreme Court in a century buying. (A recent study found that when the Roberts Court heard a case pitting a business against a non-business, it found in favor of the business 63% of the time on average — and a staggering 83% of cases in 2020 alone.)

For now, the case has been assigned to Judge Robert Chambers, a Clinton appointee; if appealed, it would proceed to the Fourth Circuit, the court that temporarily blocked South Carolina’s six-week abortion ban last year. (GenBioPro, for its part, has indicated it plans to bring more cases. “We are committed to using the law to remove unnecessary barriers for patients and providers and we look forward to making an announcement soon about our next steps,”  Evan Masingill, the president of GenBioPro, said in August.)

West Virginia’s attorney general Patrick Morrisey has vowed to fight the suit. “We are prepared to defend West Virginia’s new abortion law to the fullest. While it may not sit well with manufacturers of abortion drugs, the U.S. Supreme Court has made it clear that regulating abortion is a state issue,” he said in a statement. Morrisey will be defending the ban on multiple fronts: on Wednesday, the Women’s Health Center of West Virginia, the state’s sole abortion clinic, also filed a lawsuit challenging the ban.

West Virginia providers, meanwhile, are hopeful that the lawsuits against the state ban may offer an opportunity to build more robust protections. “Roe may not have been the best law for ensuring that our rights are protected,“ Angy Nixon, a West Virginia midwife, says. “Maybe we do need to build a new law that is a bit more ironclad.”