Appeals court refuses to reinstate N Carolina abortion ban
Published 11:02 pm Wednesday, June 16, 2021
By Gary D. Robertson
RALEIGH — North Carolina’s ban on most abortions after the 20th week of pregnancy must remain unenforceable, a federal appeals court ruled on Wednesday, rejecting arguments that the law should be left intact because prosecutors aren’t going after doctors who violate it.
A three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, upheld a 2019 lower-court decision striking down the prohibition, which has been on the books since 1973.
The Republican-dominated legislature in 2015 narrowed the scope of medical emergencies under which a woman would be exempt from the 20-week limit.
That meant more abortions involving unviable fetuses could be considered criminal, raising the fear for abortion providers that they could face prosecution. A U.S. District Court judge in 2019 agreed and blocked the law’s enforcement in situations where the fetus would be considered not viable.
State government lawyers representing some district attorneys and state health officials who were sued argued the abortion providers lack legal standing to challenge the law. Their arguments for the law’s reinstatement are based on the fact that North Carolina has not charged any abortion providers under a pair of laws being challenged, and because prosecutors currently have no plans to do so.
But Circuit Judge Diana Gribbon Motz, writing the unanimous opinion, said recent actions by North Carolina lawmakers and those in other states to further restrict abortion appears to affirm that legislators are interested in seeing their measures implemented. The 2015 changes in North Carolina, not subject to the current lawsuit, also increased the waiting period to obtain an abortion from 24 hours to 72.
Motz pointed to 20-week bans approved by legislators in South Carolina, South Dakota and Ohio around the time the lawsuit was filed in 2016. The U.S. Supreme Court also agreed last month to consider a lawsuit challenging Mississippi’s 15-week ban. Other states have approved ”
“It is difficult to explain why the (North Carolina) legislature would have altered the text of the 20-week ban if it did not expect for those words to ever be given effect,” she wrote. “As a nation we remain deeply embroiled in debate over the legal status of abortion. While this conversation rages around us, this court cannot say that the threat of prosecution to abortion providers who violate the law is not credible.”
North Carolina’s original 20-week ban became law soon after the U.S. Supreme Court issued its Roe v. Wade decision protecting abortion as a constitutional right until a fetus develops enough to live outside the womb, generally between 24 and 28 weeks.
Abortion-rights groups, including those who defended the plaintiffs — some physicians and Planned Parenthood South Atlantic among them — praised Wednesday’s ruling.
“This ruling is a victory for all North Carolinians in line with decades of Supreme Court precedent,” Genevieve Scott, a lawyer with the Center for Reproductive Rights who argued before the appeals court, said in a news release. “Forcing someone to continue a pregnancy against their will is a violation of their basic humanity, their rights, and their freedom.
A spokesperson for the state Department of Justice, whose attorneys represented the defendants, said the office was reviewing the decision, which was also joined in by Circuit Judges Albert Diaz and Julius Richardson. Richardson was a nominee of President Donald Trump. The other two were nominated by Democratic presidents. All three judges had expressed skepticism about the state’s position on legal standing during online oral arguments last month.
The case could be appealed to the U.S. Supreme Court. North Carolina’s Department of Justice is led by Attorney General Josh Stein, a Democrat and abortion-rights supporter. Stein recused himself from the appeal because of his position on abortion.
Federal courts have previously struck down other abortion laws that North Carolina legislators passed. In 2014, they blocked a 2011 law requiring abortion providers to show and describe an ultrasound to the pregnant woman. A lawsuit in state court seeking to overturn five other abortion restrictions, including the 72-hour waiting period, is pending.
The GOP-controlled General Assembly gave final approval last week to a measure barring women from obtaining abortions on the basis of the unborn child’s race or a prenatal diagnosis of Down syndrome. The bill is now before Democratic Gov. Roy Cooper, an abortion-rights supporter who vetoed other abortion restrictions in 2019.