Eagles grants lawmakers’ motion to defend NC abortion law

N.C. Speaker Tim Moore, R-Cleveland, and Senate Leader Phil Berger, R-Rockingham, at a press conference at the Legislative Building in Raleigh, Nov. 9, 2022. Source - Carolina Journal.

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  • U.S. District Judge Catherine Eagles has issued an order confirming that Republican legislative leaders can continue defending North Carolina's new abortion law in federal court.
  • Senate leader Phil Berger and House Speaker Tim Moore asked to intervene in the case after learning that N.C. Attorney General Josh Stein would not defend the law.
  • Eagles issued an order Friday allowing most of the law to move forward. She placed a two-week ban on a documentation requirement related to the use of abortion drugs.

Three days after allowing most of North Carolina’s new abortion law to take effect, U.S. District Judge Catherine Eagles has confirmed that legislative leaders can continue to defend the law against a challenge from Planned Parenthood.

An order issued Monday “memorializes” a ruling Eagles made during a court hearing Wednesday. She granted top Republican lawmakers’ motion to intervene in the case. “This Order is subject to reconsideration on prompt filing of a motion by any defendant who did not have counsel of record as of the June 28 hearing,” Eagles explained.

The latest development followed Eagles’ announcement Friday of a two-week temporary restraining order blocking one portion of the new law.

The judge rejected requests from Planned Parenthood and a Duke Health doctor, supported by N.C. Attorney General Josh Stein, to block other new abortion restrictions. Eagles cited the impact of amendments Gov. Roy Cooper signed into law Thursday. She also noted additional stipulations legislative leaders agreed to make Thursday.

The one section targeted by Eagles’ order involved the new law’s “intrauterine location and documentation provision.” Supporters and critics of the law had addressed the issue during Wednesday’s hearing in Eagles’ Greensboro courtroom.

“Failing to comply with the intrauterine documentation requirement may carry the possibility of criminal penalties,” the judge wrote. “If the failure to so document the existence of an intrauterine pregnancy makes the medical abortion unlawful, as the intervenors appeared to contend at the hearing, then the physician’s actions are not excepted from the fetal homicide statute. … This warrants a strict standard of review for vagueness.”

“The plaintiffs are likely to succeed on their claim that the intrauterine documentation requirement as amended is unconstitutionally vague,” Eagles wrote. “If the pregnancy is in early stages and the physician cannot document the existence of an intrauterine pregnancy, then the physician cannot comply with this requirement.”

The judge rejected requests to block any other part of the amended law.

The Planned Parenthood suit challenges a provision requiring hospitalization for surgical abortions performed after 12 weeks of pregnancy. Eagles agreed with parties in the case that the challenged provision takes effect on Oct. 1. “Therefore, an immediate temporary restraining order is unnecessary,” Eagles wrote. “The plaintiffs’ challenges to the hospitalization requirement can be heard after full briefing on the motion for a preliminary injunction.”

Eagles agreed with plaintiffs that a ban on advising women about out-of-state abortions would violate the First Amendment. But she cited amended language and Thursday’s stipulation that nothing in the law would “impose civil, criminal, or professional liability on an individual who advises, procures, causes, or otherwise assists someone in obtaining a lawful out-of-state abortion.”

“The Court agrees with this construction,” Eagles wrote. “So construed, the ambiguities and First Amendment issues raised by the plaintiffs are unlikely to rise to an unconstitutional level and a temporary restraining order is not necessary at this stage.”

The judge explained that “many of the inconsistencies and ambiguities identified by the plaintiffs in the original Act have been resolved by the amendments” Cooper signed into law.

“1. It is not fetal homicide to perform a lawful abortion under the Act;

2. Providers are not required to verify that the gestational age is less than 70 days for a medical abortion to be lawful;

3. There is a medical emergency exception to the 72-hour mandate, and the 72 hours do not restart if the name of the physician who will perform the abortion is not known or changes;

4. Providers are not required to inform the patient whether insurance will cover the abortion; and

5. Providers are not required to file complete reports for minors within three days.”

“The amendments are likely to moot the plaintiffs’ vagueness challenges to the provisions in the original Act directed to these matters,” Eagles wrote. “Because the plaintiffs are no longer likely to be successful on the claims based on the original language of the Act, the motion for a temporary restraining order as to these provisions will be denied.”

Eagles plans to issue a scheduling order this week. Supporters and critics of the law will have more opportunities to argue for and against a preliminary injunction against portions of the law.

State Senate leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, filed the motion to intervene on June 22.

“This case proves the necessity and wisdom of North Carolina’s choice about who can speak on the State’s behalf in federal court,” wrote Ellis Boyle, the lawyer representing Berger and Moore. “Attorney General Joshua Stein, while named as a defendant, has publicly opposed North Carolina’s laws regulating abortion at issue. He informed the Legislative Leaders that he will not defend the challenged laws in this case and will affirmatively support Plaintiffs’ challenge.”

Boyle cited Stein’s tweet on June 22. “I support women’s reproductive freedoms,” the attorney general tweeted. “After a thorough review of the case in Planned Parenthood v. Stein, I have concluded that many of the provisions in North Carolina’s anti-abortion law are unconstitutional. My office will not defend those parts of the law.”

Lawyers representing Stein supported plaintiffs seeking a TRO from Eagles.