Judge strikes down NC restrictions on abortion pills. What it means for access

Luciana Perez Uribe Guinassi
·3 min read
2

The laws for North Carolinians seeking to take a pill to end a pregnancy are changing.

A federal judge issued her final ruling Monday in a lawsuit by an OB-GYN challenging state regulations on medication abortion.

The ruling marks the potential end of a months-long lawsuit and means:

▪ Mifepristone does not need to be taken in a clinical setting and can be taken in one’s own home.

▪ The pill can be provided by pharmacies and not solely by licensed physicians.

▪ A follow-up appointment is not required, but an advance consultation is.

Here’s a look at what else the ruling means.

What was the lawsuit about?

The lawsuit was filed by Dr. Amy Bryant of UNC Health in January 2023. This is the same month that the U.S. Food and Drug Administration approved a protocol for certified pharmacies to provide mifepristone directly to patients.

This approval opened access to the drug for people beyond clinical settings and for delivery by a mail-order pharmacy with a valid prescription. Mifepristone is the first part of a two-pill regimen for the termination of a pregnancy within the first 10 weeks of gestation.

Bryant challenged the state’s regulations on mifepristone. More specifically, she challenged state laws in place around prescribing the pill, such as requiring doctors to provide the pill in-person at certified facilities, and after a 72-hour waiting period.

She argued that the FDA’s usage requirements, which are more lenient than state laws, preempt North Carolina’s restrictions.

Who were the parties in the case?

Bryant filed the lawsuit against the state’s top lawyer, Attorney General Josh Stein, a Democrat. She also named Kody Kinsley, the secretary of North Carolina’s Department of Health and Human Services, as well as a district attorney and members of the state medical board as defendants in this case.

After Stein recused himself from the lawsuit – opting instead to argue against the state laws in a legal brief – House Speaker Tim Moore and Senate leader Phil Berger were allowed to join the lawsuit in defense of the laws.

In a court filing, attorneys for Berger and Moore said that the lawsuit “seeks to eradicate important state-law protections for unborn children and their mothers’ health and welfare,” and that the FDA does not have the final say over “one of the most divisive and consequential social and political issues of our day and the past fifty years.”

What did the judge decide?

U.S. District Judge Catherine Eagles, tasked with reviewing the case, had previously issued a detailed opinion in early May granting a partial victory to Bryant.

In that opinion, Eagles argued that several state abortion laws on medication abortion went against a congressional mandate that the FDA create the regulatory framework for safe drug distribution and use.

On Monday, Eagles issued a judgment and permanent injunction, essentially a final court order requiring compliance by the parties involved.

In this determination, Eagles ruled that the following provisions are preempted by federal law:

  • Prohibitions on health care providers other than physicians providing mifepristone.

  • Requirements that mifepristone be provided in-person.

  • Requirements that an in-person follow-up appointment be scheduled, or that efforts be made to ensure such a follow-up appointment.

  • Requirements on reporting non-fatal complications caused by the drug to the FDA.

Eagles ruled that not only were the state laws specifically cited in the lawsuit preempted by the FDA, but also any other similar provisions in state law.

Eagles wrote that enforcement, penalization, or requiring compliance with any of the provisions is prohibited.

She also held that requirements not preempted by the FDA, such as requirements for an in-person, 72-hour advance consultation and blood type testing, were allowed to stand.

NC Reality Check is an N&O series holding those in power accountable and shining a light on public issues that affect the Triangle or North Carolina. Have a suggestion for a future story? Email realitycheck@newsobserver.com