NC Attorney General Won’t Defend State’s Abortion Drug Restrictions

Ryan Morgan
By Ryan Morgan
February 16, 2023Politics
NC Attorney General Won’t Defend State’s Abortion Drug Restrictions
A combination pack of mifepristone (L) and misoprostol tablets, two medicines used together, also called the abortion pill, in a photo taken on May 8, 2020. (Elisa Wells/Plan C/AFP via Getty Images)

North Carolina Attorney General Josh Stein, a Democrat, is refusing to defend the state’s restrictions on the abortion drug mifepristone in court. Stein and the state Department of Justice are instead backing a plaintiff who is challenging the state laws.

North Carolina law requires a 72-hour waiting period before patients can pursue an abortion and requires physicians to explain the risks of an abortion and provide the mother with gestational information about the unborn child. In some circumstances, an ultrasound may also be required.

Amy Bryant, a physician who prescribes the drug, filed a federal lawsuit in January seeking to overturn North Carolina laws restricting when mifepristone can be prescribed. Bryant is arguing that the state laws “interfere with her ability to provide medical care to her patients according to her best medical judgment.” The lawsuit argues that Congress gave to the U.S. Food and Drug Administration the right to regulate drugs such as mifepristone, and that federal law preempts state law where it relates to regulating abortion drugs.

The North Carolina law that imposes waiting periods, counseling, and ultrasounds, prior to an abortion was passed by the state’s Republican legislators in 2011. Then-governor Bev Perdue, a Democrat, vetoed the bill but the Republican-controlled legislature overrode her veto effort and the law went into effect.

Stein was elected to the state-wide office of attorney general in 2016. He recently announced his plans to run for governor in 2024.

Bryant’s lawsuit names Stein as a defendant, as it is his job as to defend the state’s laws in court. Rather than attempting to defend the state’s law, Stein’s office instead shared support for Bryant’s claims.

In a letter to lawyers for Republican North Carolina House Speaker Tim Moore and Republican Senate President Pro Tempore Phil Berger, North Carolina Deputy Attorney General Sarah Boyce wrote that Bryant’s arguments that federal law preempts the state’s law on access to abortion drugs “are legally correct.”

“Consistent with its statutory authority, the FDA has determined that restrictions like the ones imposed under North Carolina state law would unduly burden patients’ access to a safe and effective drug,” Boyce wrote. “The department’s filings in the (lawsuit) on behalf of Attorney General Stein will reflect this legal analysis on the merits.”

NTD News reached out to Moore and Berger for comment, but they did not respond before this article was published.

Legal Battles Focus on Abortion Drugs

Bryant’s lawsuit comes months after the U.S. Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization. That decision reversed the precedent set in 1973 by Roe v. Wade and largely provided states with the power to decide their own laws regarding access to abortions.

Many Republican states have sought to restrict abortions, but pro-choice advocates have challenged these laws, once again asking the courts to define when abortions can be allowed.

Bryant’s lawsuit is one of several focused just on abortion drugs like mifepristone and misoprostol.

A federal lawsuit, filed in Texas in November, is arguing in the opposite direction as Bryant is. The complaint, brought by the conservative advocacy group Alliance for Hippocratic Medicine, accused the FDA of ignoring science and law to appease pro-abortion advocates when the agency approved mifepristone and misoprostol. Those plaintiffs said the FDA could only rationalize approving abortion drugs under the premise that pregnancy is an illness to be treated.

Twenty-two Democratic state attorneys general have organized in opposition to the Texas case, while 22 Republican attorneys general have come out in favor of the lawsuit.

The Republican coalition is seeking not only to challenge the FDA approval of abortion drugs, but to challenge a new rule the FDA adopted in January that allows people to order mifepristone by mail.

The Associated Press contributed to this article.

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