North Carolina lawmakers intervene to defend abortion pill restrictions in case testing FDA power

Boxes of the medication Mifepristone used to induce a medical abortion are prepared for patients at Planned Parenthood health center in Birmingham, Alabama, March 14, 2022.

Evelyn Hockstein | Reuters

A federal judge on Friday allowed North Carolina lawmakers to defend restrictions on the abortion pill mifepristone, after the state attorney general declined to do so.

Dr. Amy Bryant, a North Carolina physician, sued the state in January to block its restrictions on mifepristone because they go beyond the Food and Drug Administration’s regulations.

State Attorney General Joshua Stein, a Democrat, agreed with Bryant and declined to defend the state’s restrictions on mifepristone. Stein told North Carolina lawmakers the FDA determined that restrictions like those in North Carolina unduly burden patients’ access to a safe and effective drug.

The president of North Carolina’s Senate, Philip Berger, and state House Speaker Timothy Moore intervened to defend the state’s laws. North Carolina has divided government. The state legislature has a Republican majority and Gov. Roy Cooper is a Democrat.

The judge ordered gave the lawmakers until March 24 to respond to Bryant’s lawsuit.

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Berger and Moore argued that the Supreme Court decision to overturn Roe v. Wade in June gave states the power to regulate abortion. Blocking North Carolina’s restrictions on mifepristone would usurp the power of the state legislature, they said.

The abortion pill has become the central flashpoint in the battle over abortion access since the Supreme Court overturned Roe. The North Carolina case is one of several legal battles that are testing whether FDA regulations or state laws will govern the administration of mifepristone.

The FDA significantly eased federal restrictions on mifepristone in January. The agency permanently ended a requirement that patients’ obtain the medication in person from a certified provider.

The FDA also allowed retail pharmacies to dispense the pill so long as they become certified under a federal monitoring program. Patients need a prescription from a certified health-care provider to get a medical abortion.

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The FDA changes allow patients to get the prescription via telehealth provider and have the medication delivered by mail.

North Carolina’s laws are more restrictive than the FDA’s. The state requires patients to obtain mifepristone from a physician in person at a specially certified facility. The doctor has to be physically present when the patient takes mifepristone. Women also have to wait 72 hours after signing a consent form before the doctor can administer the pill.

Mifepristone, used in combination with misoprostol, is the most common method to terminate a pregnancy in the U.S., accounting for about half of all abortions.

Physicians in Texas who oppose abortion have asked a federal judge to order the FDA withdraw its more than two-decade-old approval of the abortion pill. One of the pill makers, GenBioPro, has sued West Virginia to overturn its abortion ban.

Democratic attorneys general have asked a federal judge in Washington state to declare the remaining FDA restrictions on mifepristone unconstitutional.