Bloomberg Law
Feb. 22, 2023, 6:27 PM

Anti-Abortion State Lawmakers Assert Rights in Federal Cases

Mary Anne Pazanowski
Mary Anne Pazanowski
Legal Reporter

West Virginia’s Republican attorney general will defend a new law that requires abortions to be performed in hospitals by physicians who hold admitting privileges, while GOP lawmakers in North Carolina and Arizona are seeking permission to argue for upholding their states’ restrictions.

The US District Court for the Southern District of West Virginia Tuesday granted Patrick Morrisey’s request to intervene in a suit filed by the state’s only abortion clinic. Women’s Health Center of West Virginia sued members of the state’s medical board in early February, arguing that the hospital and physician-only provisions violate the US Constitution because they aren’t rationally related to the state’s interests.

North Carolina’s legislative leaders, Senate President Pro Tempore Philip Berger (R) and Speaker of the House Timothy Moore (R) asked the US District Court for the Middle District of North Carolina to allow them to join a suit challenging limits that include physician-only, informed consent, and waiting period restrictions.

These provisions “warrant a full-throated defense” that likely won’t be supplied by Attorney General Joshua Stein, a Democrat who has publicly opposed state laws regulating abortion, the lawmakers said in Tuesday’s brief. The North Carolina suit was filed in late January by a doctor who performs abortions in the state.

Both states’ laws have the effect of undermining medication-induced abortions, an early-stage intervention in which patients self-ingest two drugs designed to expel fetal tissue from the uterus. The North Carolina lawmakers invoked the US Food and Drug Administration’s recent decision to permit these drugs to be sold in some retail pharmacies as one reason for their request to intervene.

Several lawsuits challenging state restrictions on medication abortions are pending, including one in a federal court in Texas that is seeking an order to invalidate the FDA’s approval of one of the key drugs, mifepristone.

Arizona lawmakers also moved to intervene in a lawsuit pending in a federal court in Arizona over the state’s ban on abortions sought because a fetus has tested positive for a genetic anomaly, such as Down syndrome. The lawmakers argued that the state’s new Democratic attorney general, Kris Mayes, isn’t likely to defend the law, as she has publicly called it unconstitutional.

A judge recently said the state can enforce the genetic anomaly ban because the plaintiffs aren’t likely to win their pre-enforcement challenge. The plaintiffs, the Arizona Medical Association, the Arizona National Organization For Women, the National Council of Jewish Women (Arizona Section) Inc., and physicians Paul Isaacson and Eric Reuss, filed a notice of appeal Tuesday from the decision denying their request to halt enforcement of the provision.

The American Civil Liberties Union Foundation, Cooley LLP, the ACLU of West Virginia, and Mountain State Justice Inc. represent the plaintiffs in the West Virginia case. The West Virginia Attorney General’s office represents the intervenor. No appearance has been filed for the medical board members.

King & Spalding LLP represents Amy Bryant in the North Carolina case. The North Carolina Department of Justice represents the state officials. Ward & Smith PA and Alliance Defending Freedom represent the lawmakers.

Wilkinson Stekloff LLP, the Center for Reproductive Rights, and the ACLU of Arizona represent the plaintiffs in the Arizona case. The Arizona Attorney General’s Office represents the state officials. Alliance Defending Freedom represents the lawmakers.

Planned Parenthood receives funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

The cases are Women’s Health Ctr. of W. Va. v. Sheth, S.D. W.Va., No. 23-cv-79, 2/22/23; Bryant v. Stein, M.D.N.C., No. 23-cv-77, motion to intervene filed 2/21/23; Isaacson v. Mayes, D. Ariz., No. 21-cv-1417, notice of appeal filed 2/21/23.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at mpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Maya Earls at mearls@bloomberglaw.com

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