Judge Allows North Carolina 12-Week Abortion Ban to Take Effect
- July 07, 2023
North Carolina’s 12-week ban on abortion took effect July 1 after a federal judge largely refused to block its implementation.
U.S. District Court for the Middle District of North Carolina Judge Catherine Eagles denied plaintiffs Planned Parenthood South Atlantic and a physician’s motion for a temporary restraining order (TRO), except as to a provision requiring physicians to document the existence of an intrauterine pregnancy before prescribing or administering an abortion-inducing drug.
Eagles found plaintiffs were likely to succeed on their claim that the intrauterine document requirement was unconstitutionally vague. “The uncontradicted evidence at this stage establishes that patients often seek abortions early in pregnancy when physicians cannot see a gestational sac in utero,” Eagles said. According to Eagles, plaintiffs were likely to prevail on their claim that the amended provision failed to give fair notice as to what conduct was prohibited and lacked sufficient standards to prevent arbitrary and discriminatory enforcement.
Plaintiffs challenged the ban as unconstitutional, but Eagles found amendments made to the statute after the complaint was filed largely addressed concerns about inconsistencies and vagueness.
Amendments to the law dropping the “to advise” portion of the provision making it unlawful after 12 weeks of pregnancy “to procure or cause a miscarriage or abortion” address the likely First Amendment implications of prohibiting people from helping others obtain lawful out-of-state abortions.
Eagles also found “many of the inconsistencies and ambiguities” in the law also were resolved by recent amendments, including that it is not fetal homicide to perform a lawful abortion; that providers are not required to verify that gestational age is less than 70 days for a medical abortion to be lawful; that there is a medical emergency exception to the 72-hour mandate; that providers are not required to inform the patient whether insurance will cover the abortion; and that providers are not required to file complete reports for minors within three days.
“The amendments are likely to moot the plaintiffs’ vagueness challenges to the provisions in the original Act directed to these matters,” Eagles concluded in largely denying the TRO.
In addition, a provision requiring hospitalization for surgical abortions after 12 weeks doesn’t go into effect until October 1. “[U]ntil that date, a qualified physician may perform an abortion after the twelfth week and through the twentieth week of a woman's pregnancy when the procedure is performed in a licensed abortion clinic and when the woman's pregnancy is a result of rape or incest,” making an immediate TRO unnecessary, Eagles said. The TRO remains in effect until July 14 pending further order from the court.
Plaintiffs’ challenge to the hospitalization requirement will be heard on the motion for a preliminary injunction.
The GOP-controlled legislature in North Carolina enacted the law, which lowers the threshold for legal abortions from 20 to 12 weeks, in the spring and subsequently overrode Democratic Governor Roy Cooper’s veto of the measure.
Planned Parenthood South Atlantic v. Stein, No. 1:23-CV-480 (M.D.N.C. June 30, 2023).