GOP Leaders Allowed to Defend NC Abortion Pill Restrictions in Court After Democrat AG Refusal

Mifepristone (Mifeprex) and Misoprostol, the two drugs used in a chemical abortion, are seen at the Women's Reproductive Clinic, in Santa Teresa, New Mexico, on June 17, 2022. Robyn Beck/AFP/Getty Images

Two of the top Republicans in the North Carolina Legislature are allowed to intervene in a lawsuit to defend laws that place restrictions on abortion pills, a federal judge said in an order (pdf) on March 10.

North Carolina law requires the abortion pill mifepristone be dispensed in person after a 72-hour waiting period and only after patients receive state-mandated counseling and, in some cases, an ultrasound, according to the lawsuit (pdf) filed in the Middle District of North Carolina in January.

House Speaker Tim Moore and Senate President Pro Tempore Phil Berger requested through their attorneys from Alliance Defending Freedom (ADF)—a non-profit legal organization committed to protecting religious freedom, free speech, parental rights, and the sanctity of life—to intervene as the state’s Democrat Attorney General Josh Stein refused to do so.

Stein, a 2024 gubernatorial candidate, argued the state’s laws do not supersede Food and Drug Administration (FDA) rules which do not place as many limits on accessing the abortion drug, according to the Associated Press.

“Health care decisions—including those involving reproductive health—should be made by patients & their providers, not politicians,” he said in a Tweet last month. “The state of NC’s restriction of women’s use of the prescriptions they need to exercise their reproductive freedoms violates federal law and the Constitution.”

Physician Argues FDA Reigns Supreme over State Law

The challenge to the state abortion pill restriction was filed in January by physician Amy Bryant. Bryant argues the Supremacy Clause of the U.S. Constitution invalidates five North Carolina statutes and a chapter of the Division of Health and Human Services’ facility safety codes.

The suit notes in 2000, the FDA approved marketing of the drug under the name Mifeprex for the “medical termination of intrauterine pregnancy in a two-drug regimen with Misoprostol.”

In doing so, the suit claims the FDA imposed regulatory controls that were “commensurate with the drug’s risks while not unduly burdening patient access or the healthcare system.”

Republican speaker of the North Carolina House of Representatives, Tim Moore, speaks to the press in front of the U.S. Supreme Court in Washington on Dec. 7, 2022. Olivier Douliery/AFP via Getty Images

“In doing so, FDA determined that any risk-mitigation benefits from additional restrictions would be outweighed by added burdens on patient access and the healthcare system,” attorneys for Bryant argued.

The suit further states after two decades, the drug has been found a “safe and effective option for ending early pregnancy” and has been used for more than five million abortions—and now “accounts for more than half of abortions nationwide.”

“The [rules do not require], because FDA has affirmatively determined it should not, that mifepristone be provided by physicians only, that it be provided in person or in specially certified facilities, or that it be preceded by an ultrasound in all cases.”

Bryant argues North Carolina’s laws impose a “complex web of requirements relating to the provision” of the abortion drug that apply across patients and providers in the state, including her.

Without the state statutes, she argues she would “be able to provide medication abortion care to a larger number of patients at lower cost,” adding the restrictions imposed by the state could increase risk by pushing patients outside the “time-critical” period they could use the drug, thus requiring “more involved and expensive procedures.”

Republicans Argue State Rights in Defense of Laws

The two Republican leaders argued through attorneys that after the Supreme Court overturned Roe v. Wade, the lawsuit tries to usurp North Carolinians’ authority “through their elected representatives, to reasonably regulate abortion in their state.”

They say the argument in the suit “incorrectly” challenges “common sense health-and-safety laws” by viewing the FDA’s decision to make the drugs more freely available as superior to any state laws to regulate the chemical abortion drugs.

“This case proves the necessity and wisdom of North Carolina’s choice about who can speak on the State’s behalf in federal court,” they wrote in their memo (pdf) seeking approval to intervene. “Attorney General Joshua Stein is a named defendant who publicly opposes North Carolina’s laws regulating abortion. He informed the Legislative Leaders that he [will] not defend the challenged laws in this case and will affirmatively support Plaintiff’s challenge.”

They further argue the FDA does not issue federal law mandating access to drugs or the medical profession in the United States, “much less any individual state.”

“Federal courts consistently recognize that states have great deference in regulating how doctors provide medical care to citizens in each state,” attorneys for the Republican leaders added.

“Women who become unexpectedly pregnant should be empowered with life-affirming options and resources to make the best choice for themselves and their unborn babies,” said ADF Senior Counsel Denise Harle in a press release.

“Tragically, many women turn to abortion as a last resort, unaware of the harms of chemical abortion or the resources available to them. No one benefits more from this situation than abortionists, who profit with each abortion they sell. We’re pleased the court allowed Speaker Moore and President Pro Tempore Berger to enter this case and help defend North Carolina’s pro-life and pro-woman laws.”

The March 10 ruling by the judge gives until March 24 for the men to file their official response to the lawsuit with the court now that they are formally intervening as defendants.