We agree with Josh Stein’s abortion stance, but is it the right one for an AG?

Last week, Attorney General Josh Stein said he would not be acting to lift the injunction on North Carolina’s ban on abortions after 20 weeks, which has seen new movement in the courts following the U.S. Supreme Court’s ruling on Roe v. Wade.

“The Department of Justice will not take action that would restrict women’s ability to make their own reproductive health care decisions,” Stein said in a press release. “Protecting that ability is more important than ever, as states across the nation are banning abortions in all instances.”

Stein took his stance after Republican legislative leaders Tim Moore and Phil Berger put pressure on him to request that a federal judge lift a 2019 injunction that prevented North Carolina from enforcing the 20-week ban. Stein’s stand is one we appreciate, and he has a relative lack of power in the situation. If Moore and Berger want to push to lift the injunction, they apparently can. They have already said they are exploring options to have the legislature’s legal team challenge the injunction. Stein is opting out.

Still, the precedent this sets should make North Carolinians at least a little uneasy. Would progressive North Carolinians feel this same sense of satisfaction about Stein’s stand if a Republican attorney general blocked gun control legislation set forth by a Democrat-led General Assembly? Certainly, the role of attorney general isn’t exactly cut-and-dried. While AGs are sworn to defend the state in any legal action, they are also sworn to represent all state departments, and sworn to protect North Carolinians. What happens when every group wants something different?

In 2016, then-AG Roy Cooper said he would not defend House Bill 2 against the lawsuits that inevitably came in response to the discriminatory legislation. It was a move that paid off for Cooper politically: HB 2 became a huge rallying point for North Carolinians in the election, and Cooper was able to point to this action to show he disagreed with what had become a giant stain on the state. But Cooper’s office also litigated on behalf of the state in its voter ID legal battle, despite his own disagreement with it.

U.S. District Judge William Osteen Jr., the same judge that issued the 2019 abortion injunction, asked both parties to submit briefings in light of the states’ newfound power over abortion law earlier this month. North Carolina’s 20-week ban was in place from 1973 up until 2019, when a federal judge declared it unconstitutional since it cut off abortion access before “viability,” the point where an infant could live outside of the womb. The ban is about a month short of viability, per most doctors, although the term doesn’t have a set definition.

Stein’s stance is about more than just the 20-week ban. While the ban does make provisions for abortions after 20 weeks if the pregnant person’s health is at risk, the legislature redefined “health risk” in 2015 to mean imminent death or permanent damage to the body that affects day-to-day life, not psychological risks. The 20-week ban does not consider the health and viability of the fetus, which may not be able to live outside the womb, meaning a pregnant person would go through labor only to have a baby whose short life would be full of pain. The 2015 revamp of the law also says that only board-certified OB-GYNs can perform abortions, even those that take place in pill form, even though abortions are not surgery. It’s something that adds more time to the process of getting an abortion in North Carolina, time that GOP leaders are looking to reduce.

At the end of the day, Stein’s stance on this matter may not be necessary. Moore has told reporters that the legislature is “totally capable” of having its attorneys ask the court to reinstate the ban. If Republicans were looking to embarrass the attorney general, it doesn’t seem to have worked: he reaffirmed the reason that many North Carolinians voted for him in the first place, to protect rights in ongoing legal battles. But we’re uncertain about what Stein’s decision says about the AG’s power, and we welcome the courts clarifying exactly what Stein and future attorney generals can and can’t do.