Legislative leaders urge federal judge to dismiss abortion pill lawsuit

The Senate Judiciary Committee conducts business. (Image from ncleg.gov)

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  • N.C. legislative leaders have asked a federal judge to dismiss a lawsuit targeting state laws against abortion pills.
  • A memorandum from the legislators' attorneys says "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."
  • The case's plaintiff, Dr. Amy Bryant of UNC Health, argued that federal law trumps the state's ability to ban the targeted drug.

N.C. legislative leaders filed a motion Friday to dismiss a federal lawsuit targeting the state’s laws against abortion pills. The judge in the case allowed lawmakers to intervene in the suit two weeks ago.

“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 Republican lawmakers. “While always true, the Supreme Court reaffirmed the proper allocation of regulatory power last summer in Dobbs v. Jackson Women’s Health Organization.”

The U.S. Supreme Court’s ruling in the Dobbs case overturned federal abortion protections set out in Roe v. Wade and Planned Parenthood v. Casey.

Top legislators oppose a suit filed on Jan. 25 by Dr. Amy Bryant of UNC Health. Bryant targeted her complaint against N.C. Attorney General Josh Stein, the Orange-Chatham district attorney, the secretary of North Carolina’s Department of Health and Human Services, and members of the N.C. Medical Board.

“Plaintiff, a North Carolina physician who performs abortions, seeks to eradicate important state-law protections for unborn children and their mothers’ health and welfare,” according to legislators’ attorneys. They include representatives from the group Alliance for Defending Freedom. “She makes the novel claim that the Food and Drug Administration’s (“FDA”) approval of chemical-abortion drugs for certain uses pre-empts 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,” lawmakers’ memorandum 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,” according to legislators’ attorneys. “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. The Supreme Court’s decision in Dobbs directly controls the matter. States can pass these laws.”

“The FDA sets a floor to declare whether drugs are safe enough to market. 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.”

Though Bryant avoided naming legislative leaders when she filed her suit, neither she nor any named defendant objected to legislative intervention in the case. Bryant asked U.S. District Judge William Osteen to set the Friday deadline for lawmakers to respond to her suit.

Bryant also took part in a 2016 lawsuit that challenged other N.C. abortion laws, including the ban on most abortions after 20 weeks of pregnancy. That lawsuit proved successful for abortion advocates until the U.S. Supreme Court’s 2022 Dobbs ruling.

Osteen oversaw the earlier case as well. He “vacated and dissolved” his injunction against North Carolina’s abortion law in August 2022. The judge cited the Dobbs ruling in his decision.

Bryant will have a chance to respond to lawmakers’ dismissal motion before Osteen acts in the current case, titled Bryant v. Stein.