As legal fight plays out, what to know about NC’s 20-week abortion ban

A North Carolina law that has been on the books for decades, which bans most abortions after 20 weeks of pregnancy, could soon be reinstated after it was blocked under the landmark abortion rulings that were recently overturned by the Supreme Court.

Soon after the court handed down its decision last month, leaders of the GOP-controlled state legislature called on Democratic Attorney General Josh Stein to seek the ban’s reinstatement, adding that they were prepared to take legal action of their own to get the ban put back in place if necessary.

Stein announced Thursday that the department would not ask a federal judge to lift an injunction that has been imposed on the ban since 2019.

The legal fight over the future of the ban is only just beginning, however. Earlier this month, the judge who struck down the abortion law in 2019, William Osteen Jr., ordered all parties in the case to submit briefs with their arguments for why the injunction should or should not be lifted in light of the Supreme Court’s ruling.

Parties involved in the case have been given a month’s time, until Aug. 7, to submit their briefs before the court determines what steps take place next.

What would NC’s blocked abortion ban prohibit?

The 20-week ban GOP lawmakers are trying to get reinstated was originally passed by the General Assembly in May 1973, four months after the Supreme Court issued its ruling in Roe v. Wade that recognized a constitutional right to abortion and limited the ability of states to regulate abortions under a trimester framework.

Laws criminalizing abortion in North Carolina had been in place for more than 80 years when the Supreme Court legalized abortion across the country in 1973.

After Roe was decided, state lawmakers amended the laws to ban abortions only after 20 weeks of pregnancy. Pregnancies beyond 20 weeks that were at a “substantial risk” of becoming life-threatening or “gravely (impairing) the health of the woman” were exempted from the ban.

In 2015, the legislature passed a bill extending the state’s mandatory waiting period, after an initial consultation with a doctor and before an abortion, from 24 hours to 72 hours.

The bill also made two major amendments to the 20-week abortion ban. First, it mandated that only board certified OB/GYNs could perform abortions, which abortion rights groups said would curtail the number of doctors patients could go to for the procedure.

It also narrowed the definition of a medical emergency that would allow an abortion after 20 weeks, to only allow abortions in situations when the procedure was deemed necessary to avoid death or ”a serious risk of substantial and irreversible impairment of a major bodily function, not including psychological or emotional conditions.”

Lawsuit challenges constitutionality of 20-week ban

In November 2016, a group of doctors, joined by the ACLU of North Carolina, Planned Parenthood South Atlantic and the Center for Reproductive Rights, filed a lawsuit in federal court claiming that the 20-week ban was unconstitutional since it would ban some abortions that took place before viability, the point when a fetus would be able to survive outside the womb.

(Before the Supreme Court overturned Roe and Planned Parenthood v. Casey last month, the court had recognized viability as the stage of pregnancy before which states could not impose restrictions on abortion. The exact point when viability occurs is determined on a case-by-case basis, but is generally estimated to be around 23 to 24 weeks.)

“The 20-week ban presents physicians with an untenable choice: face criminal prosecution for providing medical care in accordance with their best medical judgment, or refuse to provide the critical care their patients seek,” the plaintiffs argued at the time.

Attorneys for the state officials named in the lawsuit argued that the plaintiffs couldn’t challenge the 20-week ban because they didn’t face a credible threat of prosecution, since officials said no abortion providers had been prosecuted under the law since it was passed in 1973. But Osteen, the district court judge, ruled in favor of the plaintiffs.

In March 2019, Osteen, an appointee of former Republican President George W. Bush, ruled that the 20-week ban was unconstitutional, and gave state lawmakers the option of either writing a new law or appealing the ruling.

The case, Bryant v. Woodall, was appealed to the U.S. Court of Appeals for the 4th Circuit, where state officials defending the law challenged the plaintiffs’ standing, instead of the law’s constitutionality.

In June 2021, the appellate court upheld the earlier ruling that found there was a credible threat of prosecution, and kept the injunction blocking the 20-week ban in place.

Current status of abortion in North Carolina

For now, until a judge lifts the injunction imposed in 2019, abortions remain legal in the state through viability, according to Stein’s office.

Abortions performed after viability remain illegal, since the court ruling blocked the 20-week ban from being enforced “only to the extent that the statute prohibits any pre-viability abortions.”

Apart from the fight over the 20-week ban, Republican lawmakers have also said they expect to consider and possibly introduce further restrictions on abortion when the legislature convenes for its next full-length session early next year.

Since any new restrictions would almost certainly be blocked by Democratic Gov. Roy Cooper, Republicans are focusing on winning a handful of seats in both the state House and Senate in November, which would give them the ability to override vetoes from the governor and enact laws on their own.

Republicans currently hold 69 seats in the House and 28 seats in the Senate, leaving them three and two seats short of a legislative supermajority, respectively.

For more North Carolina government and politics news, listen to the Under the Dome politics podcast from The News & Observer and the NC Insider. You can find it at https://campsite.bio/underthedome or wherever you get your podcasts.