Berger, Moore renew request for federal judge to dismiss abortion pill lawsuit

Members of the N.C. House of Representatives consider legislation in committee. (Image from

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  • Top state legislative leaders have filed a new motion to dismiss a lawsuit challenging North Carolina's abortion pill restrictions.
  • State Attorney General Josh Stein, the lead defendant in the case, has rejected lawmakers' previous efforts to end the case.
  • Lawmakers and Stein also have taken opposing legal stances in a separate lawsuit that challenges North Carolina's new abortion law. That law restricts most abortions after 12 weeks of pregnancy.

Top Republican state legislative leaders have filed a new motion to dismiss a lawsuit challenging North Carolina’s abortion pill restrictions. Lawmakers filed their motion Monday as they continue to fight a separate suit challenging the state’s latest abortion law.

“North Carolina has the authority to enact laws for the general welfare that respect unborn life, promote maternal health, and uphold the integrity of the medical profession,” wrote attorneys representing Senate Leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland. “While always true, the Supreme Court reaffirmed the proper allocation of regulatory power last summer in Dobbs v. Jackson Women’s Health Organization.”

Berger and Moore are fighting a suit filed by Dr. Amy Bryant of UNC Health.

“Plaintiff, a North Carolina physician who performs abortions, seeks to eradicate important state-law protections for unborn children and their mothers’ health and welfare,” lawmakers’ lawyers wrote. “She makes the novel claim that the Food and Drug Administration’s (“FDA”) approval of chemical abortion drugs for certain uses preempts North Carolina’s police power and, as a result, the FDA’s regulations bind and limit the state’s laws on abortion.”

“Supreme Court precedent requires that an agency must identify clear congressional authorization to justify the agency’s attempt to control actions related to a significant political issue under the major questions doctrine,” the motion continued. “Plaintiff’s claim requires a finding that when Congress passed the Federal Food, Drug, and Cosmetic Act (“FDCA”) in 2007, it gave the FDA sole power to regulate chemical abortions in all fifty states.”

“Yet, the FDCA merely required the FDA to implement safety measures over the use of dangerous drugs, including the chemical abortion drug Mifeprex. Nothing in the text of the FDCA suggests that Congress authorized the FDA to exercise exclusive, preemptive power over one of the most divisive and consequential social and political issues of our day and the past fifty years,” legislative leaders’ lawyers argued. “The Supreme Court’s decision in Dobbs directly controls the matter.”

“The FDA sets a floor to declare whether drugs are safe enough to market,” the motion continued. “FDA approval under the FDCA does not preempt state regulation of the use or prescription of drugs by state-licensed physicians to patients in the state. Nor does it trump compelling state interests in protecting unborn life, promoting maternal welfare, and regulating the medical profession. This Court should grant this motion and dismiss this lawsuit against all Defendants.”

Berger and Moore entered the case to defend state law. Bryant named state Attorney General Josh Stein as lead defendant in the lawsuit. The state Health and Human Services Secretary, Orange-Chatham district attorney, and members of the state Medical Board are also named defendants.

Stein filed paperwork on April 28 opposing an earlier motion from state legislative leaders to dismiss an earlier version of Bryant’s suit.

The attorney general also opposes state legislators, and supports the plaintiffs’ pursuit of a preliminary injunction, in a separate case challenging North Carolina’s new abortion law. The law restricts most abortions after 12 weeks of pregnancy.

Berger and Moore filed paperwork on Aug. 7 opposing a preliminary injunction in that case. U.S. District Judge Catherine Eagles is scheduled to hold a Sept. 21 hearing in Greensboro to address the injunction.

Plaintiffs Planned Parenthood and Duke Health Dr. Beverly Gray seek to block two pieces of the law that otherwise took effect on July 1. One requires doctors using abortion drugs to document an intrauterine pregnancy. The other requires abortions performed after 12 weeks of pregnancy to take place in hospitals.

Eagles already has issued a temporary order blocking the “IUP requirement.” The hospitalization requirement is scheduled to take effect on Oct. 1.