FILE - A patient prepares to take the first of two combination pills, mifepristone, for a medication abortion during a visit to a clinic in Kansas City, Kan., Oct. 12, 2022. (AP Photo/Charlie Riedel, File)

CHARLESTON — Gov. Patrick Morrisey praised a decision made Tuesday by a federal appeals court in a case brought when he was attorney general challenging West Virginia’s near-total ban on abortion and limits on medication used for abortion.

A three-judge panel of the U.S. Court of Appeals for the 4th Circuit issued an opinion Tuesday in GenBioPro Inc. v. Kristina Raynes, arguing that federal law does not prevent West Virginia from enforcing provisions of the Unborn Child Protection Act.

“Big win out of the 4th Circuit today,” Morrisey said in a statement Tuesday. “I defended this law as Attorney General and am proud to see a victory in this case. West Virginia can continue to enforce our pro-life laws and lead the nation in our efforts to protect life. We will always be a pro-life state!”

GenBioPro, manufacturers of the abortion drug mifepristone, filed a lawsuit in 2023 seeking to stop the enforcement of House Bill 302, creating the Unborn Child Protection Act.

The West Virginia Legislature passed HB 302 in a 2022 special session, banning all abortions unless a licensed medical professional’s reasonable judgment calls for the procedure, such as cases of a non-medically viable fetus, ectopic pregnancies or medical emergencies. Abortion is defined in state code as “the use of any instrument, medicine, drug, or any other substance or device” used with intent to terminate a pregnancy.

The law came following a June 2022 decision by the U.S. Supreme Court that reversed two previous high court decisions that gave women the right to abortion access, returning the issue back to the states — Roe v Wade and Planned Parenthood of Southeastern Pa. v. Casey.

Attorneys for GenBioPro argued that the Unborn Child Protection Act is preempted by the Food and Drug Administration Amendments Act, which established a Risk Evaluation and Mitigation Strategy for drugs like mifepristone to ensure safe use and patient access.

However, the majority opinion, authored by Judge J. Harvie Wilkinson III, affirmed an earlier decision by the U.S. District Court for the Southern District of West Virginia, which concluded the federal law does not preempt the state’s abortion ban, asserting that Congress did not clearly intend to displace state authority in regulating abortion, an area of traditional state concern.

“The question before us is whether certain federal standards regulating the distribution of the abortion drug mifepristone preempt the West Virginia law as it applies to medication abortions,” Wilkinson wrote. “The district court determined there was no preemption, and we now do the same. For us to once again federalize the issue of abortion without a clear directive from Congress, right on the heels of Dobbs, would leave us one small step short of defiance.”

But one of the three judges – DeAndrea Gist Benjamin – dissented in part, arguing for federal preemption of West Virginia’s abortion law.

“Put plainly, this law erects barriers to life-saving healthcare for countless West Virginians in ways not envisioned by Congress,” Benjamin wrote.