Dr. Amy Bryant, a physician, filed a case in U.S. District Court in January to enable her to continue to prescribe abortion medicine to her patients in the face of the recent North Carolina state law that restricts dispensing these pills. In spite of this, the North Carolina Attorney General Josh Stein says that will not defend the new state law in court because he feels that the state restrictions are preempted by federal regulations that permit access to the pills. This is a battle between the federal legislature that gave authority to the U.S. Food & Drug Administration (FDA) to regulate the FDA-approved drug and the N.C. state legislature. The N.C. law mandates that the abortion medicine can only be dispensed in-person following a 72-hour waiting period and after the patient receives state-mandated counseling and in some cases an ultrasound. The FDA-approved abortion medicine mifepristone was approved by the FDA in 2000 to end pregnancy when used with misoprostol, a second prescription medicine, that is used to expel the embryo or fetus. These medicines have been approved for use up to the 10th week of pregnancy. The FDA no longer requires that the pill be dispensed in-person. The medicine can be dispensed in the mail or picked up at a pharmacy.
On March 17th, Wyoming became the first state to ban abortion pills except for “natural miscarriages.” Sarah Boyce, general counsel at the Department of Justice for N.C. wrote, “The FDA has determined that restrictions like the ones imposed under North Carolina state law would unduly burden patients’ access to a safe and effective drug.”
Nineteen states, including North Carolina, have recently passed laws that control how, when and where physicians can prescribe and dispense abortion drugs. This is significant because there were more medically-induced abortions in the United States and in North Carolina than abortions via surgical procedures. The influx of new state laws has occurred since the United States Supreme Court decided that a woman does not have a constitutional right to abortion and turned decision-making over women’s reproductive rights to the states, 9 months ago. The Supreme Court reversed Roe v. Wade, by a 6-3 vote, which had been a nationwide law since 1973.
Last week, legal arguments began in a lawsuit that threatens access to the FDA-approved medicine mifepristone. The lawsuit challenges the legality of the abortion medicine. The challenge was filed by the same group that helped overturn Roe v. Wade. It has been assigned to a U.S. District Court in Texas to a judge appointed by former President Donald Trump. The U.S. Department of Justice is representing the FDA. This federal court ruling can have nationwide implications regardless of the legality of abortion within a particular state.
U.S. Court Judge Matthew Kacsmaryk, the judge overseeing the trial, has decided that he would delay putting this case on the public docket, essentially closing the case to media scrutiny, to reduce the risks of threats and protests. This decision is in contrast to the usual openness and transparency in federal court proceedings which is felt to be the keystone of the American judicial system. The U.S. Marshals Service has historically provided successful security during many potentially threatening cases.
David Cohen, a law professor at Drexel law school, said “Courts are supposed to be open to the public, or only in extraordinary circumstances do you seal documents or hide a hearing.”
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Contact: Dr. Dick Needleman, Health reporter, 103.3 AshevilleFM, healthyasheville@ashevillefm.org