Stein opposes dismissal of abortion pill lawsuit filed against him

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  • N.C. Attorney General Josh Stein opposes a motion to dismiss a lawsuit filed against him. The suit chalenges North Carolina's restrictions on abortion pills.
  • State legislative leaders intervened in the case filed by a UNC Health doctor against Stein, state health officials, and a local district attorney.
  • A separate document from state Health and Human Services Secretary Kody Kinsley warns about the dangers of restricting access to "reproductive services."

State Attorney General Josh Stein opposes legislators’ attempt to dismiss a lawsuit challenging North Carolina’s abortion pill restrictions. That’s despite the fact that Stein is a named defendant in the suit.

In paperwork filed Friday, Stein formally opposed a motion to dismiss the case filed against him, the state Health and Human Services secretary, the Orange-Chatham County district attorney, and members of the N.C. Medical Board.

Health Secretary Kody Kinsley filed a separate document responding to lawmakers’ motion. The plaintiff, Dr. Amy Bryant, filed her own document opposing the motion as well.

“For more than two decades, the Food and Drug Administration has approved and regulated mifepristone, a drug used for the medical termination of early pregnancy,” wrote lawyers from Stein’s N.C. Department of Justice. “Based on extensive evidence, the agency has determined that mifepristone is safe and that serious complications are extremely rare.”

“The FDA regulates mifepristone pursuant to express statutory authority, which empowers the agency to weigh the benefits of the drug against its risks and to impose conditions on its administration,” Stein’s lawyers added.

“[T]he FDA has rescinded certain conditions that, in the agency’s expert scientific judgment, are no longer necessary to ensure the drug’s safety,” according to the N.C. Justice Department brief. “North Carolina law nonetheless imposes some of the very same restrictions on mifepristone that the FDA has implemented and then subsequently withdrawn. Under settled preemption principles that the Supreme Court has applied for decades, the Supremacy Clause does not permit States to frustrate the considered judgment of a federal agency in that manner.”

Stein’s lawyers label state lawmakers’ arguments in the case “unpersuasive.” “They claim that the FDA regulations in this context set a ‘floor’ and that States may therefore enact
additional restrictions,” according to the N.C. Justice Department brief. “But the state laws that Plaintiff challenges here do not merely supplement federal standards; instead, they directly interfere with a balance that Congress empowered the FDA to strike because they impose regulations that the agency adopted and later rescinded.”

Kinsley’s separate brief does not actively oppose state legislators’ motion. But the state health secretary warns of the dangers of “restrictions to reproductive health care.”

“Part of the NCDHHS mission is ensuring that health care is accessible for all North Carolinians, and that includes reproductive health services,” according to Kinsley’s brief. “Access to reproductive health services has a profound impact on women’s lives and is an essential part of comprehensive health care. It is also an equity issue. Research shows that restrictions on reproductive health care rights have harmful consequences on individuals’ health, safety, and economic stability.”

State legislative leaders filed a motion in March to dismiss the suit titled Bryant v. Stein. A federal judge had allowed them to intervene in the case. That was despite the fact no lawmaker was named as an original defendant.

“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.”

“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.”