Stein joins plaintiff in accepting lawmakers’ intervention in abortion pill lawsuit

Image from

Listen to this story (6 minutes)

  • N.C. Attorney General Josh Stein does not oppose state legislative leaders intervening in a lawsuit challenging state restrictions on abortion pills.
  • Stein informed lawmakers on Feb. 13 that he believes the plaintiff's arguments against state restrictions are "legally correct."

N.C. Attorney General Josh Stein will not oppose legislative leaders’ intervention in a lawsuit challenging state abortion pill restrictions. Stein filed paperwork in federal court Monday accepting lawmakers’ participation in the case.

Stein’s filing arrived four days after Dr. Amy Bryant, the plaintiff, also accepted legislative intervention in the suit.

“On February 13, 2023, the Attorney General’s General Counsel sent the legislative leaders a letter that stated, as relevant here: [A]fter review and analysis, we have concluded that Plaintiff’s preemption arguments are legally correct,” wrote attorneys from Stein’s N.C. Justice Department. “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.”

“The Supremacy Clause of the U.S. Constitution does not permit States to pass laws that undermine that determination,” Stein’s lawyers added. “The letter made clear that the Attorney General would cooperate with intervention should the legislative leaders elect to intervene.”

Legislative leaders filed a motion on Feb. 21 to intervene in the case, titled Bryant v. Stein. “Under the circumstances, the Attorney General respectfully informs the Court that he does not oppose intervention in this matter,” Justice Department lawyers wrote.

Bryant “does not oppose” the motion to intervene filed by Senate leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland. Bryant “will not respond at this time to their misplaced arguments regarding the merits,” according to paperwork Bryant’s attorneys filed Thursday.

Bryant asked a federal judge to set March 24 as the deadline for legislative leaders to file a response to her lawsuit or a motion to dismiss the case. That date would “align the
response times of all defendants who have yet to respond to the complaint.”

Legislative leaders filed their motion to take part in the lawsuit after Stein announced he would not defend state law in the case.

Bryant v. Stein, filed Jan. 25, targeted the attorney general, the Orange-Chatham County district attorney, the N.C. secretary of health and human services, and members of the N.C. Medical Board. The complaint did not mention legislative leaders, even though the General Assembly approved the disputed law.

“The Legislative Leaders have an interest in upholding the validity of state statutes aimed at protecting unborn life, promoting maternal health and safety, and regulating the medical profession, “ according to the motion from lawmakers’ attorneys. “North Carolina law designates the Legislative Leaders as agents of the State for the purpose of intervening to defend these statutes. Routine application of recent Supreme Court precedent should make this a fairly simple issue.”

“This action seeks to undermine the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization by usurping the authority of the people of North Carolina, acting through their elected representatives, to reasonably regulate abortion in their state,” according to the motion. “It does so by challenging several commonsense health-and-safety laws that have been on the books for years, based on a new and incorrect argument that the FDA’s decision to permit chemical abortion drugs to be marketed under certain conditions means that states cannot enact their own laws regulating the safety of chemical abortion for their citizens.”

The motion cites the U.S. Supreme Court’s 2022 ruling in Berger v. NAACP, in which the high court ruled, 8-1, that lawmakers could intervene in a federal lawsuit challenging the states’ voter ID law.

“The Supreme Court recognized the Legislative Leaders’ significant protectable interest in protecting valid North Carolina laws and potential impairment if they are blocked from participating in a lawsuit about the validity [of] North Carolina laws,” lawmakers argued.

“This case proves the necessity and wisdom of North Carolina’s choice about who can speak on the State’s behalf in federal court,” according to the motion. “Attorney General Joshua Stein is a named defendant who publicly opposes North Carolina’s laws regulating abortion. He informed the Legislative Leaders that he [will] not defend the challenged laws in this case and will affirmatively support Plaintiff’s challenge. That makes the Legislative Leaders’ intervention even more important.”

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.

U.S. District Judge William Osteen “vacated and dissolved” his injunction against North Carolina’s abortion law in August 2022. Osteen cited the Dobbs ruling in his decision.

Osteen is also overseeing the Bryant v. Stein case.