Some North Carolina Abortion Pill Laws Are Preempted, Judge Says

North Carolina laws exceeding US Food and Drug Administration limitations on the prescribing of the abortion-inducing drug mifepristone are preempted by federal law, a US judge ruled on Tuesday.

However, US District Judge Catherine Eagles in Greensboro added, state laws “that focus more on the practice of medicine and a patient’s informed consent,” that haven’t been addressed by the FDA, don’t frustrate congressional purpose and are not preempted.

Eagles’ 49-page ruling granted summary judgment in favor of the plaintiff, Dr. Amy Bryant on the former, and in favor of intervening state lawmakers on the latter. North Carolina Attorney General Josh Stein, a Democrat, had sided with Bryant, the judge explained.

Her ruling comes roughly one month after the US Supreme Court heard related arguments over the safety of the drug in a case brought by anti-abortion doctors seeking to reverse FDA measures that made it more widely available to end pregnancies.

Eagles heard arguments on the state law case in February.

The FDA in 2000 approved mifepristone’s use to end pregnancies during the first 10 weeks. Since then, it has been used by more than 5 million patients and now accounts for about half of all abortions in the US, according to Bryant’s Aug. 7, 2023, amended complaint.

More recently the drug became a prime target for anti-abortion activists who two years ago succeeded in their decades-long quest to persuade the Supreme Court to overrule its 1973 decision in Roe v. Wade, that found a constitutional right to an abortion.

Enacted last year, the challenged North Carolina measures imposed tightened restrictions on mifepristone’s use within the state, requiring its in-person distribution by a doctor, banning access through licensed pharmacies, imposing informed-consent requirements, and requiring ultrasound examinations in certain circumstances.

Those part of the state’s law requiring an in-person 72-hour advance consultation, ultrasound use, in-person examination, and other measures to the state “deal with informed consent and broader health and safety matters and are not preempted,” Eagles said.

“But the provisions that require physician-only prescribing, in-person prescribing, dispensing, and administering, the scheduling of an in-person follow-up appointment, and non-fatal adverse event reporting to the FDA stand as obstacles to Congress’ purpose in creating a comprehensive federal regulatory scheme for higher-risk drugs run by the FDA and are preempted,” she said.

The case is Bryant v. Stein, M.D.N.C., 1:23-cv-00077, 4/30/24