Federal suit against NC abortion rules could be decided without trial

Planned Parenthood and North Carolina’s top legislative leaders will file motions in federal court that will ask a judge to resolve a dispute over new abortion rules without a trial. An injunction issued in September 2023 has blocked two pieces of the state’s latest abortion law from taking effect.

US District Judge Catherine Eagles issued an order Friday dropping the case Planned Parenthood v. Stein from her May 6 calendar. The order explained that Eagles plans to reschedule the trial to start no sooner than July 22 but no later than Aug. 19.

The case might never reach that stage.

Eagles’ order responded to two court filings on Feb. 14. Both Planned Parenthood and lawyers for state Senate Leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, filed notices that they intend to file “dispositive motions.”

That type of motion asks a judge to decide a case’s outcome without a trial.

Planned Parenthood and Duke Health Dr. Beverly Gray target the new abortion law’s “IUP Documentation Requirement” and “Hospitalization Requirement.” The first would require doctors to document a pregnancy’s intrauterine location before administering abortion drugs. The second would require hospitalization for all abortions performed after 12 weeks of pregnancy.

Gray dropped another portion of the lawsuit in December.

Eagles issued an injunction against both targeted requirements on Sept. 30, one day before the hospitalization requirement was scheduled to take effect.

Eagles’ 34-page order left the rest of the new law intact. The law restricts most abortions after 12 weeks.

“The plaintiffs are likely to succeed on the merits of their vagueness challenge to the requirement that providers determine and document the probably intrauterine location of a pregnancy before administering medication intended to terminate a pregnancy,” Eagles wrote. “The Act does not provide a clear standard by which providers can make this determination, the provision is open to differing interpretations and does not provide reasonable notice of what is prohibited, and providers are subject to arbitrary accusations that they have violated the provision and to the penalties that accompany those accusations.”

“The plaintiffs are also likely to succeed on the merits of their equal protection challenge to the Act’s requirement that surgical abortions after 12 weeks of pregnancy must be performed in a hospital,” Eagles continued. “The plaintiffs have offered uncontradicted evidence that the same medical procedures used for surgical abortions are used for miscarriage management and that the risks of those identical procedures are the same whatever their purpose.”

“The legislature’s maternal health reasons for requiring these procedures to be done in a hospital when a person who is pregnant as a result of rape or incest or with a life-limiting anomaly chooses to terminate a pregnancy apply equally to the same procedures when a person chooses those procedures to manage a miscarriage,” the judge added. “The plaintiffs have shown the absence of any rational medical basis for distinguishing between these two classes of patients and the defendant-intervenors have not offered any evidence or rationale for that distinction.”

State Attorney General Josh Stein and Health and Human Services Secretary Kody Kinsley are named defendants in the case, along with local district attorneys and leaders of the NC medical and nursing boards. Berger and Moore are considered “defendant-intervenors.”

Legislative leaders have defended both challenged requirements in court filings.

“As the leading cause of maternal mortality in the first trimester, ectopic pregnancies must be identified and treated before they rupture,” lawmakers’ lawyers argued. “The North Carolina General Assembly addressed this danger by requiring doctors to document an intrauterine pregnancy (IUP) prior to giving women drugs that can mask the symptoms of a life-threatening rupture. The U.S. Food and Drug Administration (FDA) has also addressed this risk by including a warning on mifepristone’s label that a prescriber must ‘exclude [an ectopic pregnancy] before treatment.’ Codifying FDA’s warning into law is rational.”

Legislative leaders also made the case for the new law’s hospitalization requirement for abortions that take place after 12 weeks of pregnancy.

“The General Assembly also sought to provide safe conditions for women who seek abortions beyond the first trimester,” according to the brief. “As Plaintiffs have conceded, women who have post-12-week surgical abortions may experience life-threatening complications that require hospitalization. What’s more, Planned Parenthood South Atlantic (PPSAT) admits that it has transferred women from its facilities to hospitals due to complications from post-12-week surgical abortions that it could not treat at its facilities.”

“Simply put, the North Carolina legislature had rational reasons to require IUP documentation prior to a chemical abortion and hospitalization for post-12-week surgical abortions. The Constitution affords the North Carolina General Assembly — not Plaintiffs — that choice,” lawmakers argued.

“The North Carolina General Assembly enacted straightforward, rational protections for women who seek certain types of abortions. And for Plaintiffs to ask the Court to grant their Motion for Preliminary Injunction is to ask the Court to impermissibly ‘substitute [its] social and economic beliefs for the judgment of’ these representatives,” lawmakers’ brief concluded.