Top Republican leaders ask judge to dismiss lawsuit over NC abortion pill laws

Tribune Content Agency

RALEIGH, N.C. — North Carolina House Speaker Tim Moore and state Senate leader Phil Berger filed a motion Friday requesting dismissal of a lawsuit that would block restrictions on abortion pills.

The lawsuit centers around a medication called mifepristone, the first part of a two-pill regimen to end a pregnancy. The plaintiff, Dr. Amy Bryant, argued that state restrictions on abortion pills conflict with the far more lenient federal regulations.

Bryant, a Triangle abortion provider, said North Carolina’s laws prevent her from providing care according to her best medical judgment and limits patients’ access to health care.

In a memo supporting their motion to dismiss, Republican leaders argued that federal approval of prescription drugs does not stop states from further regulating them.

“Nor does it trump compelling state interests in protecting unborn life, promoting maternal welfare and regulating the medical profession,” the court filing reads.

The lawsuit

For the past several years, the Food and Drug Administration has slowly peeled away restrictions on mifepristone — allowing health care providers other than doctors to prescribe the medication and retail pharmacies to dispense it.

However, North Carolina state laws place heavier restrictions on the pill, allowing doctors to provide the pill only in person at certified facilities, and after a 72-hour waiting period.

Bryant’s lawsuit asks the Federal District Court to confront the differences between state and federal law and consider whether North Carolina’s laws on the pill are an overstep.

The plaintiff’s argument — which is predicated on the FDA’s approval of this medication — could face trouble in the coming weeks depending on how a Trump-appointed judge rules in a pivotal abortion pill lawsuit out of Texas. A decision to overturn the FDA’s approval of mifepristone could undermine Bryant’s argument that the state should default to federal regulations.

Bryant initially named N.C. Attorney General Josh Stein, DHHS Secretary Kody Kinsley, a district attorney and members of the state medical board as defendants in this case. The Republican legislators asked to be added as defendants after Stein said he would not defend the state’s abortion laws, writing that the plaintiffs were “legally correct.”

In their court filing, attorneys for Berger and Moore said that Bryant’s lawsuit “seeks to eradicate important state-law protections for unborn children and their mothers’ health and welfare,” making a “novel claim” that FDA approval preempts states’ ability to limit abortion.

They pointed to Dobbs v. Jackson Women’s Health Organization, the recent U.S. Supreme Court ruling overturning constitutional abortion protections, as evidence that the FDA does not have the final say over “one of the most divisive and consequential social and political issues of our day and the past fifty years.”

“The Supreme Court’s decision in Dobbs directly controls the matter,” the filing says. “States can pass these laws.”