West Virginia

CHARLESTON, W.Va. -- West Virginia can restrict the sale of the abortion pill, despite federal regulators' approval of it as a safe and effective medication, a federal judge has ruled.

U.S. District Court Judge Robert C. Chambers determined Thursday that the near-total abortion ban signed by Republican Gov. Jim Justice in September 2022 takes precedence over approvals from the U.S. Food and Drug Administration.

“The Supreme Court has made it clear that regulating abortion is a matter of health and safety upon which States may appropriately exercise their police power,” Chambers wrote in a decision dismissing most challenges brought against the state by abortion pill manufacturer GenBioPro, Inc. in a January lawsuit filed in the state southern district’s Huntington division.

Since the U.S. Supreme Court last year overturned Roe v. Wade, the 1973 ruling that provided nationwide access to abortion, most GOP-controlled states have enacted or adopted abortion bans of some kind, restricting abortion pills by default. All have been challenged in court.

Legal experts foresee years of court battles over access to the pills, as abortion-rights proponents bring test cases to challenge state restrictions.

In West Virginia's case, regulation of medical professionals “is arguably a field in which the states have an even stronger interest and history of exercising authority,” than the federal government, Chambers decided.

GenBioPro, Inc., the country’s only manufacturer of a generic version of the abortion pill mifepristone, had argued that the state cannot block access to a U.S. Food and Drug Administration-approved drug.

Chambers dismissed the majority of the manufacturer's challenges, finding there is “no disputing that health, medicine, and medical licensure are traditional areas of state authority.”

In a statement Friday, GenBioPro CEO Evan Masingill said the company remains “confident in the legal strength” of its case and is considering next steps.

“GenBioPro was founded on the belief that all people should have access to evidence-based, essential medication and will continue to use all legal and regulatory tools available to ensure access for all,” he said.

The decision was lauded by West Virginia Republican Attorney General Patrick Morrisey.

“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. “I will always stand strong for the life of the unborn.”

Chambers will allow a challenge by the manufacturer concerning telehealth to proceed, however. Congress has given the FDA the right to dictate the manner in which medications can be prescribed, and the agency has determined that mifepristone can be prescribed via telemedicine.

Morrisey said his office looks forward to arguing the telehealth issue: “We are confident in the merits of our case.”

Mail-order access to the drug used in the most common form of abortion in the U.S. would end under a federal appeals court ruling issued Aug. 16 that cannot take effect until the Supreme Court weighs in.

The decision by three judges on the 5th U.S. Circuit Court of Appeals in New Orleans overturned part of a lower court ruling that would have revoked the Food and Drug Administration’s 23-year-old approval of mifepristone. But it left intact part of the ruling that would end the availability of the drug by mail, allow it to be used through only the seventh week of pregnancy rather than the 10th, and require that it be administered in the presence of a physician.

Those restrictions won’t take effect right away because the Supreme Court previously intervened to keep the drug available during the legal fight.

The panel’s ruling would reverse changes the FDA made in 2016 and 2021 that eased some conditions for administering the drug.

President Joe Biden’s administration said it would appeal, with Vice President Kamala Harris decrying the potential effect on abortion rights, as well as on the availability of other medications.

“It endangers our entire system of drug approval and regulation by undermining the independent, expert judgment of the FDA,” Harris’ statement said.

Abortion rights advocates said the ruling poses a major threat to abortion availability following last year’s Supreme Court ruling that overturned Roe v. Wade and the nationwide right to abortion.

There is virtually no precedent for a U.S. court overturning the approval of a drug that the FDA has deemed safe and effective. While new drug safety issues often emerge after FDA approval, the agency is required to monitor medicines on the market, evaluate emerging issues and take action to protect U.S. patients. Congress delegated that responsibility to the FDA — not the courts— more than a century ago.

Mifepristone is one of two pills used in medication abortions. The other drug, misoprostol, is also used to treat other medical conditions. Health care providers have said they could switch to misoprostol if mifepristone is no longer available or is too hard to obtain. Misoprostol is somewhat less effective in ending pregnancies.

In proposing last week to eliminate 169 faculty positions and cut more than 30 degree programs from its flagship university, West Virginia, the state with the fourth-highest poverty rate in the country, is engaging in a kind of educational gerrymandering. If you’re a West Virginian with plans to attend West Virginia University, be prepared to find yourself cut out of much of the best education that the school has traditionally offered, and many of the most basic parts of the education offered by comparable universities.

The planned cuts include the school’s program of world languages and literatures, along with graduate programs in mathematics and other degrees across the arts and pre-professional programs. The university is deciding, in effect, that certain citizens don’t get access to a liberal arts education.

Sadly, this is not just a local story. Politicians and state officials, often with the help of management consultants, are making liberal arts education scarce in some of the poorest states in the union. This trend, typically led by Republican-controlled legislatures and often masquerading as budgetary necessity, threatens to have dire long-term effects on our already polarized and divided nation.

Administrators at West Virginia University devised the plan to restructure the school with the help of a consulting company called rpk Group, which also works with the Universities of Missouri, Kansas and Virginia, among other schools. The stated purpose of the proposal is to address an expected decline in student enrollment at the school that will create a projected $45 million budget deficit.

But the projected deficit is the result of overly aggressive planning more than it is a financial liability created by the humanities. E. Gordon Gee, the president of West Virginia University, once promised that the school would have 40,000 students by 2020, but the figure is still well under 30,000 across three campuses and is projected to drop. Mr. Gee is now covering up his own failures at the expense of his state’s citizens, instead of putting his efforts toward recruiting and obtaining donor money to fund a broad education for West Virginians.

What’s more, cutting humanities programs — which make up a sizable minority of the majors slated to be cut, alongside pre-professional and technical programs — is not necessarily the best way to save money. There is substantial evidence that humanities departments, unlike a majority of college athletics programs, often break even (and some may even subsidize the sciences). In defense of its proposed cuts, West Virginia University has cited declining interest in some of its humanities programs, but the absolute number of students enrolled is not the only measure of a department’s value.

The finances aren’t the point, anyway. The humanities are under threat more broadly across the nation because of the perceived left-wing ideology of the liberal arts. Book bans, attempts to undermine diversity efforts and remodeled school curriculums that teach that slavery was about “skill” development are part of a larger coordinated assault on the supposed “cultural Marxism” of the humanities. (That absurd idea rests in part on an antisemitic fantasy in which left-leaning philosophers like Theodor Adorno and Herbert Marcuse somehow took control of American culture after the Second World War.) To resist this assault, we must provide broad access to a true liberal arts education.

The campaign to overturn the liberal arts is politically motivated, through and through. The Democratic Party has lost the working class, while the Republican Party has made electoral gains among the least educated. With the help of consultants, Republicans seek to gut the (nonprofit or public) university in the name of a “profit” it doesn’t even intend to deliver. The point instead is to divide the electorate, and higher education is the tool.

I grew up in rural upstate New York. I was lucky: My parents put a liberal arts education above all other goals. But I know what it looks like when people are told they can’t have nice things, and it’s ugly. Taking liberal arts education away from the least privileged — implying that they are future laborers and nothing else — helps ensure that they develop a resentment of “elites.” That’s an animus whose political consequences should be uncomfortably familiar by now.

The resentment fostered by cuts like those at West Virginia University won’t be aimed at the true culprits. The long-term effect will be bitterness toward those who have access to the liberal arts education that remains on offer in many blue states and at elite universities — what the scholar Lisa Corrigan calls a “two-tier educational system.” This outcome is likely to fortify many Republican voting strongholds.

Democratic politicians need to fight back in these culture wars, defending the humanities (rather than disparaging them) and loudly dissenting from the view that education is just job training. College presidents like Mr. Gee should promote and recruit rather than cutting and running. An unholy alliance of far-right ideology and mercenary venture capitalists has politicized the classroom. We must reject their vision of America and insist that a liberal arts education accessible to more than just the elite is one of the great foundations of a democracy.