Republican lawmakers allowed to join lawsuit over North Carolina abortion pill laws

A federal judge allowed two Republican lawmakers to join a lawsuit to defend North Carolina’s abortion pill laws Friday, after the state attorney general said he would not.

House Speaker Tim Moore and Senate leader Phil Berger will be the defendants in a key legal battle that could shape whether state laws or Food and Drug Administration regulations will govern how abortion pills are dispensed.

The suit could impact whether retail pharmacies will sell abortion pills in North Carolina as the FDA recently allowed them to do — a decision that is already tied up in confusion about local laws.

Dr. Amy Bryant, a physician who provides abortion care in North Carolina, filed the lawsuit in January that aims to block state restrictions on mifepristone, the first part of a two-pill regimen to end a pregnancy.

State laws require the pill to be administered only in person at certified facilities and after a 72-hour waiting period, neither of which the FDA requires. Bryant claims those restrictions are an overstep.

“North Carolina cannot stand in the shoes of FDA to impose restrictions on medication access that FDA determined are not appropriate,” the lawsuit says.

Bryant initially named N.C. Attorney General Joshua Stein, DHHS Secretary Kody Kinsley, a district attorney and members of the state medical board as defendants in this case. The Republican legislators stepped in after Stein said he would not defend the state’s abortion laws, writing that the plaintiffs were “legally correct.”

In their request to intervene, the lawmakers argued that the FDA “merely sets a floor for what drugs may go on the market” and that the state is free to impose further restrictions.

Neither representatives for the plaintiff nor the lawmakers could be immediately reached for comment.

Future of abortion pill sales at pharmacies still unclear

This lawsuit further complicates whether retail pharmacies in North Carolina will be able to dispense abortion pills, as is now allowed by the FDA.

In January, the FDA announced a new regulation that would let retail pharmacies sell mifepristone, in an effort to make the medication more accessible.

Previously, mifepristone could only be dispensed by licensed doctors and clinics and a handful of mail-order pharmacies.

Major retail pharmacies have not yet made clear where they will and won’t dispense the medication, as they navigate a patchwork of different state laws governing abortion pills.

Bryant’s lawsuit could factor into the pharmacy chains’ decision making.

The situation became even more uncertain after Walgreens announced it would not sell the pills in 20 states where governors have threatened legal action, including several states where abortion is still legal.

North Carolina was not one of the 20 states listed, but state laws make it unclear how these pharmacies would legally dispense the medication.

“Walgreens plans to dispense Mifepristone in any jurisdiction where it is legally permissible to do so,” a spokesperson for the pharmacy chain said in a statement. “Once we are certified by the FDA, we will dispense this medication consistent with federal and state laws.”

A spokesperson for CVS, another major retail pharmacy chain in North Carolina, said CVS plans to sell the medication in states that “do not restrict the dispensing” of abortion pills. As of late February, CVS did not have new information about which states would be included on that list, a spokesperson told the N&O.

The restriction in North Carolina is in a provision in the “informed consent” state law that requires a doctor be present when a patient takes the first abortion pill.

Jay Campbell, the executive director of the NC Pharmacy board, said the law doesn’t prevent pharmacies from becoming certified to dispense mifepristone. But it’s unclear whether the law would require patients to go back to their doctor’s office to be observed while taking the pill.

State regulators have offered little guidance about how the FDA’s new regulation would work in North Carolina.

The N.C. Medical Board, which regulates the medical profession, has not issued guidance to the state’s physicians on the issue and does not have immediate plans to, a spokesperson for the organization said. The state Attorney General’s Office is not authorized to give guidance to physicians, a spokesperson there said.

Teddy Rosenbluth covers science and health care for The News & Observer in a position funded by Duke Health and the Burroughs Wellcome Fund. The N&O maintains full editorial control of the work.