A pedestrian passes by the US 4th Circuit Court of Appeals Courthouse on Main Street in Richmond, Va., Wednesday, June 16, 2021. (AP Photo/Steve Helber, File)

West Virginia’s near-total abortion ban, which includes medication abortion drugs like mifepristone, was upheld by a federal appeals court on Tuesday.

The West Virginia Legislature, which is dominated by Republicans, passed House Bill 302 during a special session in September 2022. The bill, which was signed into law by then-Gov. Jim Justice (R) on Sept. 16, 2022, includes the use of medicine, drugs and other substances in its definition for abortion.

The question before 4th U.S. Circuit Court of Appeals was whether the Food and Drug Administration’s approval of mifepristone preempts HB 302. The lawsuit was brought up by GenBioPro, a pharmaceutical company that sells mifepristone. It claimed that West Virginia and then-Attorney General Patrick Morrisey (R) violated federal law by prohibiting the sale of the abortion drug. In a 2-1 decision, the court affirmed West Virginia’s abortion ban and upheld the right for the state to restrict access to mifepristone.

“For us to once again federalize the issue of abortion without a clear directive from Congress, right on the heels of Dobbs [v. Jackson Women’s Health], would leave us one small step short of defiance,” Judge Harvey Wilkinson wrote in the majority opinion. “In our view, the Act leaves the states free to adopt or diverge from West Virginia’s path. Because the Act falls well short of expressing a clear intention to displace the states’ historic and sovereign right to protect the health and safety of their citizens, we affirm.”

Morrisey, who is now the governor of West Virginia, released a statement on X celebrating the decision.

“Big win out of the 4th Circuit today! I defended this law as Attorney General and am proud to see a victory in this case,” the post reads. “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!”

Wilkinson was nominated to the court by President Ronald Reagan in 1984, and Benjamin was nominated by President Joe Biden in 2023. Rossie D. Alston Jr., a federal district court judge who was sitting in designation and became the swing vote, was appointed to the District Court for the Eastern District of Virginia by President Donald Trump in 2019.

GenBioPro did not immediately respond to a request to comment on the decision.

Currently, 28 states restrict access to medication abortion in some form. Access to mifepristone was unanimously upheld by the Supreme Court of the United States last year, as medication abortion accounts for 63% of all abortions in the United States according to Planned Parenthood.