NC Attorney General Champions Reproductive Freedom by Refusing to Defend Abortion Pill Restrictions in Lawsuit

“Health care decisions—including those involving reproductive health—should be made by patients & their providers, not politicians,” Josh Stein wrote in a tweet on Monday.

North Carolina Attorney General Josh Stein won’t defend state restrictions on medication abortion that are being challenged in a lawsuit by a North Carolina doctor. Instead, Stein will argue that federal regulations protecting access to the pills override the state’s restrictions. 

Abortion is legal up to 20 weeks in North Carolina, but under state law, any physician prescribing the abortion pill mifepristone to patients must be in the same room with them at a certified surgical facility when they take the pills, despite FDA rules to the contrary. 

The FDA approved mifepristone in 2000 as a safe way to end a pregnancy, when used in combination with a second medication, misoprostol. The combination is approved for use up to the 10th week of pregnancy and now comprises more than half of all abortions nationwide. 

During the Covid-19 pandemic, the agency eased restrictions on mifepristone, and in 2021, eliminated the in-person requirement for the pill. Under that change, doctors can now prescribe the medication via telehealth appointments and ship it to patients via mail-order pharmacies. North Carolina also mandates counseling 72 hours in advance of any abortion.

Most recently, the FDA introduced new rules this month allowing pharmacies like CVS and Walgreens to dispense the drugs to patients with a prescription, as long as they follow certain rules.

Stein, a Democrat who’s running for governor in 2024, has long been a supporter of women’s reproductive freedom.

“Health care decisions—including those involving reproductive health—should be made by patients & their providers, not politicians,” Stein wrote in a tweet on Monday. “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.”

His decision not to defend the state’s restriction means Republican legislative leaders who want to keep the restrictions would have to try to formally intervene in the federal lawsuit, which was filed by Dr. Amy Bryant, an OB/GYN who also teaches at the UNC School of Medicine.

Bryant’s lawsuit argues that the federal agency’s regulations should preempt the state restrictions, which obstruct her ability to treat patients. 

Bryant’s case could have national implications. Since the US Supreme Court overturned Roe v. Wade last summer, abortions are now banned in at least 13 states, including via medication abortion. But if Bryant’s argument that federal regulations preempt state-level restrictions succeeds, it could provide reproductive freedom advocates with a new strategy to use to fight for abortion access in other states.

At the same time, a different lawsuit poses a nationwide threat to the availability of medication abortion.

Within the next few weeks, a Trump-appointed, anti-abortion judge could issue a ruling blocking access to medication abortion across the US as part of a case brought by an extreme anti-abortion group seeking to revoke the FDA’s approval for mifepristone.

The judge, Matthew Kacsmaryk, was confirmed to the US District Court for the Northern District of Texas in 2019, under former President Trump.

The Biden administration has vowed to challenge any ban on mifepristone, but appeals could ultimately lead to the Supreme Court, which has clearly shown its hostility to reproductive freedom.

If mifepristone were banned nationwide, the impacts would be devastating for the reproductive freedom of tens of millions of women in the United States. Anticipating the worst, some abortion providers are preparing a back-up plan to use only misoprostol to perform medication abortions.

While a misoprostol-only abortion regimen is not FDA approved, a new study on misoprostol abortions in the United States found that the drug was 88% effective at ending a pregnancy. This is less effective than the two-drug combo, which is 99% effective, but research in other countries has found higher efficacy rates of misoprostol-only abortions of between 95% and 99%.