NC ban on abortion after 20 weeks can be enforced, judge rules

A federal judge has ruled that North Carolina’s general ban on abortions after 20 weeks of pregnancy can be enforced, following the landmark U.S. Supreme Court ruling allowing states to restrict abortion.

In a court order Wednesday, U.S. District Judge William Osteen lifted an injunction that had blocked the ban, declaring that the injunction went against the Supreme Court ruling that struck down Roe v. Wade.

“Neither this court, nor the public, nor counsel, nor providers have the right to ignore the rule of law as determined by the Supreme Court,” Osteen wrote.

The 20-week abortion ban in dispute had been on the books in some form since 1973. It prohibited abortions after the first 20 weeks of pregnancy, with limited exceptions for medical emergencies after 20 weeks.

But it has not been enforced recently. North Carolina has legally allowed the procedure until fetal viability, generally considered to be around 23 or 24 weeks of pregnancy.

In 2020, according to the most recent data from the N.C. Department of Health and Human Services, 30 abortions were performed at 21 or more weeks of pregnancy in North Carolina.

Seeking abortion late in pregnancy

Enforcement of the 20-week ban would represent a hardship for those who may now be forced to travel out of state for abortion care, face delays in accessing that care or dangerous complications with their pregnancy, or be forced to carry a pregnancy against their will, according to an email blast sent out by Planned Parenthood South Atlantic.

“People seeking abortion later in pregnancy often do so because they face delays in accessing abortion care or dangerous complications with their pregnancy,” wrote Jenny Black, President & CEO, Planned Parenthood South Atlantic. “Many need time to secure funds, time off work, transportation, and childcare, and often encounter other barriers in obtaining care, including medically unnecessary, state-mandated restrictions like North Carolina’s 72-hour forced waiting period.”

In North Carolina, patients seeking an abortion must receive counseling and then wait 72 hours before the procedure is provided.

After the ruling, Democratic Gov. Roy Cooper wrote on Twitter that the ban would criminalize important health care and that abortions after 20 weeks are “exceptionally rare and happens because of a devastating health emergency or diagnosis.”

The 20-week ban has exceptions for medical emergencies, defined as “a condition which, in reasonable medical judgment, so complicates the medical condition of the pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible physical impairment of a major bodily function, not including any psychological or emotional conditions.”

The conservative N.C. Values Coalition wrote in a news release that the ruling “is just the beginning” of its work to restrict abortion.

“The reinstatement of this 50 plus year-old law limiting abortion to 20 weeks is just the beginning, because unborn babies are humans with human rights, and we are going to work hard to get legislation passed which will protect as many unborn babies and their mothers as possible,” Executive Director Tami Fitzgerald wrote.

20 week ban in the courts

In 2019, Osteen ruled that the state’s abortion ban was unconstitutional in response to a federal lawsuit, dubbed Bryant v. Woodall, filed in 2016.

Osteen, who was appointed to the court by Republican President George W. Bush, ruled that the ban violated Supreme Court precedent, including the landmark decisions that made abortion a constitutional right, Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. His decision was affirmed by the 4th Circuit Court of Appeals in 2021.

But this June, the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization overturned Roe and Casey, placing decisions about the right to abortion in the states’ domain, and bringing back the debate on whether the ban should have been blocked.

In a statement last month, Stein said that his office would not ask a judge to reinstate the ban and that his agency, the N.C. Department of Justice, would not “take action that would restrict women’s ability to make their own reproductive health care decisions.”

“Protecting that ability is more important than ever, as states across the nation are banning abortions in all instances, including rape and incest,” he said.

Senate leader Phil Berger and House Speaker Tim Moore asked Osteen to reverse his 2019 ruling. Berger and Moore, Republicans who are not official parties in the lawsuit, wrote they were getting involved following Stein’s inaction and that they wanted the ban reinstated.

“North Carolina’s abortion statutes are undeniably lawful under Dobbs, and there is no longer any basis for an injunction to shackle the state from pursuing its legitimate interests,” Berger and Moore wrote in their brief.

Both plaintiffs and defendants filed motions asserting that they did not want the previous rulings reversed or modified. Plaintiffs include Planned Parenthood and North Carolina doctors, while defendants consist of district attorneys, tasked with enforcement, and the N.C. Department of Health and Human Services, which regulates abortion in the state.

The attorney general’s office wrote in its brief that the defendants, which include the district attorneys, do not plan to bring criminal charges based on the ban, so there is “no indication that modifying or lifting the injunction would have any effect on the statute’s enforcement.”

“Given this reality, the risk that modifying or lifting the injunction would worsen public confusion in the immediate aftermath of the Supreme Court’s recent disruption of decades of settled law counsels in favor of maintaining the status quo,” they wrote.

In news releases Wednesday, Berger and Moore lauded the ruling and criticized Stein.

“I am encouraged that, although our attorney general has failed to do his duty, today we have a ruling that upholds the law,” Moore wrote.

What’s next

With the ban now overturned, the question remains whether legislation regarding abortion will be introduced and passed. Republicans have expressed a desire to enact more restrictions. Most recently, Moore told The N&O last month that while not “certain at this point … I do think you would see more protection for the unborn.”

In turn, Berger told reporters in June that abortion is “a serious enough issue” that senators will take time and then “deal with any potential changes in the next legislative session” next year. He has encouraged them to “look at what they would see as what North Carolina’s rules should be if we were writing on a clear slate,” Berger said, The N&O reported.

Stein wrote on Twitter, “Women still have a legal right to an abortion in NC under state law until 20 weeks. If people want that right to continue to exist, they have to elect legislators who share that view.”

And Cooper wrote that while he disagreed “with this ruling, the vast majority of people will still be able to access reproductive health care in North Carolina” and that he’d “remain committed to protecting it.”

That leaves a lot of the future of the state’s reproductive laws riding on whether the makeup of the legislature changes this fall. Republicans hold the majorities in both chambers of the General Assembly, but Cooper holds the power to veto laws. The chances of passing future abortion bills may come down to whether Republicans gain a supermajority, which allows them to override vetoes.

Staff writer Anna Johnson contributed to this report.

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