North Carolina Republican legislative leaders asked on Tuesday to participate in litigation to defend state restrictions on dispensing abortion pills because Democratic Attorney General Josh Stein has made clear he won't.
Lawyers for Senate leader Phil Berger and House Speaker Tim Moore filed papers in federal court asking to enter the case as new defendants, saying someone must be in place to rigorously defend state abortion laws.
Last month, a physician sued Stein, a district attorney, and state health and medical officials — claiming that state laws and rules conflict with her ability to provide mifepristone to patients. Dr. Amy Bryant said those restrictions should be preempted by the powers that the U.S. Food and Drug Administration received from Congress to regulate the drug.
A lawyer for Stein's office told Moore and Berger last week that Bryant’s preemption arguments “are legally correct" and that the state Justice Department, which Stein leads, would agree with those arguments in court filings. Stein and state Department of Justice attorneys are usually tasked with defending state laws in court.
Berger and Moore are designated in state law as those who intervene in litigation to defend North Carolina's statutes, according to a memorandum in support of the motion. And a U.S. Supreme Court decision last summer involving North Carolina affirmed their positions in defending state laws.
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,” wrote Ellis Boyle, an attorney for the lawmakers.
The lawsuit in Durham federal court, along with a separate lawsuit challenging limits on abortion pills in West Virginia, are considered the beginning of legal battles over access to the medications.
North Carolina laws and rules that Bryant challenged require her to dispense the medication in person to the patient when administered in a certain facility, according to the lawsuit. That happens after a 72-hour waiting period, state-mandated counseling and in some cases an ultrasound.
Ellis wrote North Carolina’s abortion regulations apply “with equal force to both surgical and chemical abortion procedures” and that Bryant's argument would mean states "cannot enact their own laws regulating the safety of chemical abortion for their citizens."
Moore and Berger used the intervention request to throw some shade at Stein, who is running for governor next year, stating that his decision not to defend the law was about advancing his political career.
