North Carolina’s Democratic attorney general and Republican legislative leaders have taken opposite sides in a legal dispute over state laws restricting abortion pills.
But there’s at least one point of agreement. Both sides are willing to accept lawmakers’ participation in the legal fight.
It’s one of the first times the issue has cropped up since the U.S. Supreme Court ruled last year, in an 8-1 decision, that N.C. legislators have a right to intervene in federal lawsuits challenging state laws.
Dr. Amy Bryant, the UNC Health doctor targeting the abortion pill law, could have simplified the scenario. She could have filed her federal lawsuit against Senate leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland. Berger and Moore lead the two chambers of the General Assembly that enacted the challenged law.
Bryant chose instead to sue Attorney General Josh Stein, the district attorney for Orange and Chatham counties, the secretary of the N.C. Department of Health and Human Services, and members of the N.C. Medical Board.
It’s not clear that any named defendant wants to defend current state law. Stein informed lawmakers on Feb. 13 that he wouldn’t back the law. He characterized Bryant’s arguments as “legally correct.”
So Berger and Moore responded on Feb. 21 with a motion to intervene in the case. Both Bryant and Stein filed paperwork within days indicating they “do not oppose” lawmakers’ participation.
Had either the plaintiff or lead defendant in Bryant v. Stein raised objections to legislative intervention, it’s hard to imagine that they would have prevailed.
The U.S. Supreme Court ruled last June that Berger and Moore could jump into a federal court case involving North Carolina’s challenged voter identification law.
“[F]ederal courts should rarely question that a State’s interests will be practically impaired or impeded if its duly authorized representatives are excluded from participating in federal litigation challenging state law,” wrote Justice Neil Gorsuch for the 8-1 majority.
“To hold otherwise would not only evince disrespect for a State’s chosen means of diffusing its sovereign powers among various branches and officials,” Gorsuch added. “It would not only risk turning a deaf federal ear to voices the State has deemed crucial to understanding the full range of its interests. It would encourage plaintiffs to make strategic choices to control which state agents they will face across the aisle in federal court.”
Gorsuch was not writing about Bryant and her bid to overturn North Carolina’s abortion pill restrictions. But the justice anticipated Bryant’s choice of defendants. His opinion spelled out the danger of ejecting legislative leaders from courtroom battles over state law.
“It would tempt litigants to select as their defendants those individual officials they consider most sympathetic to their cause or most inclined to settle favorably and quickly,” Gorsuch wrote. “All of which would risk a hobbled litigation rather than a full and fair adversarial testing of the State’s interests and arguments.”
Legislators’ right to defend state law carries widespread implications, Gorsuch explained.
“Nor are state interests the only interests at stake,” he wrote. “Respecting the States’ ‘plan[s] for the distribution of governmental powers’ also serves important national interests. It better enables the States to serve as a ‘balance’ to federal authority. It permits States to accommodate government to local conditions and circumstances. … And it allows States to serve as laboratories of ‘innovation and experimentation’ from which the federal government itself may learn and from which a ‘mobile citizenry’ benefits.”
The federal judge overseeing Bryant v. Stein should benefit from legislative leaders’ intervention in the case. Gorsuch foresaw that outcome in the 2022 dispute over voter ID.
“[A] federal court tasked with testing the constitutionality of state law wields weighty ‘authority over a State’s most fundamental political processes,” Gorsuch wrote. “Permitting the participation of lawfully authorized state agents promotes informed federal-court decisionmaking and avoids the risk of setting aside duly enacted state law based on an incomplete understanding of relevant state interests.”
To Stein’s credit, he has not tried to keep lawmakers out of Bryant’s lawsuit against him. Stein’s Feb. 13 letter to lawyers working for Berger and Moore recognized that legislative leaders might want to participate in the case. Stein foresaw that lawmakers might adopt a different legal stance than his N.C. Justice Department planned to pursue.
“Should the President Pro Tempore of the Senate and the Speaker of the House of Representatives decide that they wish to intervene in the case, the Department will cooperate,” wrote Sarah Boyce, Stein’s general counsel.
It’s unclear whether federal courts ultimately will uphold North Carolina’s current restrictions on abortion pills. But Berger and Moore’s participation in Bryant v. Stein ensures the law will get a vigorous defense.
Mitch Kokai is senior political analyst for the John Locke Foundation.