ACLJ Fights To Defend North Carolina Limits on Abortion Pills

The ACLJ has filed an amicus brief in defense of another state’s limits on abortion drugs. We previously filed as friend-of-the-court (amicus) in support of West Virginia’s restrictions on abortion pills. This time we’re weighing in for North Carolina in its appeal to the U.S. Court of Appeals for the Fourth Circuit in the case of Bryant v. Moore.

Abortion by pills may represent the future of the abortion industry. Already, abortion by medication is more common than abortion by surgery, according to the pro-abortion Guttmacher Institute. And abortion pills can be transported into states with pro-life laws, giving the drug a national reach despite state laws protecting prenatal humans and their mothers from abortion. So it is no surprise that the abortion industry is challenging limits on abortion drugs, specifically mifepristone, the human pesticide that is used to kill tiny humans in the womb.

The flagship pro-abortion theory du jour is that because the federal Food and Drug Administration (FDA) has approved mifepristone for abortion, state efforts to restrict or ban the drug are “preempted” by federal authority. We already labeled that theory as “absurd” in our filing in the West Virginia case pending in the Fourth Circuit. We hammer that point again in the North Carolina case:

That the FDA might approve a drug does not mean a state cannot forbid someone from using it to kill human beings under specified circumstances. See Charles Graber, How a Serial-Killing Night Nurse Hacked Hospital Drug Protocol, Wired (Apr. 29, 2013), https://tinyurl.com/CullenMurder (Charles Cullen used digoxin and insulin to lethally overdose patients). A legal prohibition applies whether the offense is committed with an FDA-approved drug, e.g., Texas Man Sentenced to 180 Days in Jail for Drugging Wife’s Drinks to Induce an Abortion, AP (Feb. 8, 2024), or a shish kabob skewer, e.g., UCCS Student Accused of Using Skewer to Force an Abortion, Report says, Denver7ABC (Oct. 7, 2016) https://tinyurl.com/SkewerAbortion.

In other words, even though insulin, for example, is FDA-approved, states can still prohibit people from deliberately overdosing others or administering the drug without informed consent. Likewise, even though mifepristone is FDA-approved, that does not mean a state cannot impose regulations and limits to protect its populace. As we phrase it, “While a state may not remove a federal limit (and thus override FDA’s limits) that does not mean a state is powerless to add limits.”

We also point out in our brief that, unlike most approved drugs, mifepristone is designed for harm.

Pregnancy loss is a dreaded complication. . . . The whole point of abortion pills, however, is to cause that adverse event. . . . It is therefore flatly misleading to claim [as the plaintiff does] that, with mifepristone, “[s]erious complications are extremely rare.” . . . To the contrary, except when the drug does not work, every single woman who takes mifepristone undergoes a serious complication: pregnancy loss.

Moreover:

That the loss may have been sought by someone (not necessarily the woman) for nonmedical reasons (financial, relational, etc.) does not alter the reality of the loss. A woman who blinds herself suffers an adverse event even if she desires the outcome. Char Adams, Woman Claims She Blinded Herself with Drain Cleaner to Fulfill Her Life-Long Dream of Being Disabled: ‘I Should Have Been Blind from Birth,’ People (Oct. 1, 2015). A man who has his finger amputated suffers an adverse event even if he chooses that harm for a chance at an Olympic medal. Jon Haworth, Olympic athlete amputates finger to play in 2024 Paris Games, abcNews (July 26, 2024).

In the Bryant case, the federal trial court had issued a mixed ruling: The court declared some parts of North Carolina’s abortion restrictions to be preempted and others not. All sides of the case appealed. Our amicus filing bolsters North Carolina’s defense of its restrictions on mifepristone. It will be up to the Fourth Circuit to decide who wins the appeal. After that, the losing side may try to take the case to the Supreme Court. If so, we will be there to fight for life.