After the well-publicized leak of a draft decision from the U.S. Supreme Court, it appears a majority of the court could overturn the current federal precedent — as laid out in Roe v. Wade and Planned Parenthood v. Casey. The decision is likely to be released in May or June.
If the justices follow through on provisions of the draft opinion, states would begin to operate under rules of their own, whether already passed or new legislation inspired by the change in federal law.
The original 1973 Roe decision prevented states from regulating abortions to protect the life of the fetus until the third trimester of pregnancy. The 1992 Casey decision moved that trimester distinction instead to a viability distinction. Since then, states could not place an “undue burden” on women’s access to abortion until viability.
Working under this limited framework, North Carolina still passed a long list of laws regulating abortion. These include informed consent, which requires a 72-hour waiting period (§ 90-21.82); parental consent for minors to receive an abortion (§ 90-21.7); a ban on sex-selective abortions, when women choose to abort based on the baby’s sex (§ 90-21.121); a prohibition on selling fetal remains after an abortion (§ 14-46.1); and a ban on coverage of abortions through the health care exchanges created by the Obama administration’s Affordable Care Act (§ 58-51-63).
The state has also banned (§ 143C-6-5.5) any use of state funds for abortions as part “of any governmental health plan or government-offered insurance policy.” The statute makes exceptions if the mother’s life would be in danger or if the pregnancy was the result of rape or incest.
N.C. Family Policy Council President John Rustin told Carolina Journal in a May 10 interview that the state already had a lot of “good pro-life laws in place.” But he was hopeful that the legislature would take action in the upcoming short session to strengthen the state’s protections for the unborn once federal law allows that.
The current overarching law on abortion in North Carolina (§ 14-45.1) allows for abortions in the first 20 weeks of pregnancy in any hospital or clinic certified by the state for that procedure. After 20 weeks, abortions can only be performed in a hospital and only for emergency reasons.
“That statute was strengthened, I think in 2015, to add a pretty limited definition of medical emergencies — if it would gravely impair the life or the functionality of a major body organ of a pregnant woman,” Rustin said.
But in March 2019, U.S. District Judge William Osteen ruled that this law, virtually banning abortion after 20 weeks, violated the federal Casey precedent that no undue burdens be placed on women’s access to abortion before the child is viable outside the womb.
“So based on that ruling, the enjoining of that statute, basically abortions after 20 weeks are legal in North Carolina up to the point of viability,” Rustin said. “And tragically, the determination of viability is often made by the abortionist.”
But if the Supreme Court rules in the next few weeks in the Dobbs v. Jackson Women’s Health case that Mississippi’s ban on abortions after 15 weeks is constitutional, Osteen’s ruling on North Carolina’s medical-emergency definitions after 20 weeks would not likely stand, since it was based off the precedent from Roe and Casey.
“My understanding, after speaking with a number of attorneys, would be that because that 20-week case is still pending in federal courts, then a motion could be filed to essentially reinstate our 20-week ban,” Rustin said. “And then, of course, we would have to work legislatively to go beyond that.”
Democrat Governor Roy Cooper has a history of vetoing pro-life bills. Without a supermajority, pro-life legislators are unlikely to get any new abortion regulations passed in the current session. In an article published last week, Cooper told Axios he plans to make abortion a focus of the mid-term elections in November.
On the opposing side of Rustin and North Carolina’s pro-life movement, there is also a lot of energy from pro-choice groups in the state. Marches are planned in virtually all major cities over the next few weeks, demanding that access to abortion not be limited in the event of Roe and Casey being overturned.
Planned Parenthood South Atlantic and Women’s March are holding events in many cities across the state on the same day, saying, “On May 2nd, we learned from a leaked draft opinion that SCOTUS is poised to overturn Roe v. Wade, stripping the constitutional right to abortion in spite of fifty years of precedent. … We have to act NOW, all across the country. Together we will send a strong message that we’re not backing down. Supporting abortion access must be protected and defended.”
The Carolina Abortion Fund claims that it has raised $110,000 over just a few days, more than it typically raises in an entire month.
Both sides of the abortion debate in North Carolina are ready to fight over the state’s laws when the decision from the high court becomes official.