North Carolina Attorney General Josh Stein is refusing to defend his state’s abortion pill restrictions, arguing that an abortionist’s legal challenge to them correctly asserts that they violate the constitution.
“Attorney General Stein today informed the legislature that he has concluded that the physician plaintiff’s preemption argument in Bryant v. Stein is legally correct and that his filings in the matter will reflect that conclusion,” Stein’s press secretary Nazneen Ahmed said, according to WNCN.
Stein had, according to his office, been reviewing Bryant’s legal complaint since Jan. 25. Ahmed reportedly said that Stein told legislative leadership his justice department would cooperate if they wished to intervene.
Stein was listed as a defendant in abortionist Dr. Amy Bryant’s lawsuit, which argued that the state was illegally flouting the Food and Drug Administration’s (FDA) guidance on the mifepristone. North Carolina currently requires in-person dispensing and a 72-hour waiting period before using the pill.
The state of NC’s restriction of women’s use of the prescriptions they need to exercise their reproductive freedoms violates federal law and the Constitution. 2/2
— Josh Stein (@JoshStein_) February 14, 2023
Extremely controversial, the abortion pill has encountered liberalized and restrictive regulations under different presidents. President Biden’s FDA notably reversed its predecessor’s decision to maintain the in-person dispensing requirement for the drug regimen – something pro-life advocates maintain is critical to prevent potentially fatal health complications.
But Bryant’s lawsuit, along with another in West Virginia, has suggested that the FDA’s more lax guidance preempts state restrictions on the pill. “North Carolina cannot stand in the shoes of [the] FDA to impose restrictions on medication access that FDA determined are not appropriate and that upset the careful balance FDA was directed by Congress to strike,” Bryant’s lawsuit read.
GenBioPro, the generic abortion pill manufacturer that sued West Virginia, similarly said in its lawsuit that “[t]he Supreme Court’s decision in Dobbs did not displace Congress’s and FDA’s roles in protecting the public health by deciding whether drugs are safe and effective, determining which precautions — if any — are necessary to ensure a drug’s safe use, and ensuring safe and effective drugs are available to the public. Dobbs addressed only the underlying personal constitutional privacy right as it pertains to abortion; it did not speak to federal law regulating a drug maker’s sale and distribution of, or a patient’s access to, medication that is FDA-approved for distribution nationwide.”
West Virginia Attorney General Patrick Morrissey defended the law with a brief statement in which he cited the Supreme Court’s decision in Dobbs. “While it may not sit well with manufacturers of abortion drugs, the U.S. Supreme Court has made it clear that regulating abortion is a state issue,” he said.
GenBioPro had filed a similar lawsuit in Mississippi, where Dobbs originated, but reportedly dropped the case in August while citing a change in legal strategy. Both sides of the debate have reportedly seen potential for a lawsuit in Wisconsin as well. And in Texas, a separate lawsuit is challenging the FDA’s decision to approve the drug.
Preemption is a somewhat complicated constitutional issue that involves several considerations for determining whether a state is stepping on the federal government’s authority.
Attorneys at the Heritage Foundation have argued that the decision in Dobbs, combined with previous court decisions, has allowed states to restrict the abortion pill.
“There exists no real conflict between FDA approval of abortion drugs and state laws restricting or prohibiting them,” Sarah Perry and Thomas Jipping, both senior legal fellows at the Heritage Foundation, wrote in an article from November.
“FDA approval of abortion drugs as safe and effective for their proposed use set a regulatory floor for allowing them to enter or remain in interstate commerce, but it did not set a ceiling or exclude any other safety considerations. State laws that, for example, require in-person prescription and dispensing of abortion drugs, which the FDA itself had long required, do not conflict with the FDA’s approval. Rather, they exercise states’ authority to regulate the medical profession, enhance public safety, and restrict abortion.”
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