Judge allows NC legislative leaders to intervene in Wednesday hearing on abortion suit

U.S. District Judge Catherine Eagles will allow top Republican legislative leaders to take part in Wednesday’s hearing in a lawsuit challenging North Carolina’s new abortion law. Plaintiffs in the suit want to the judge to block much of the law from taking effect July 1.

State Senate leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, were not named as defendants in the suit, Planned Parenthood v. Stein. But the two legislators filed paperwork Thursday to intervene in the case. They want to defend the law.

U.S. District Judge Catherine Eagles issued an order Saturday allowing Berger and Moore to participate in a hearing scheduled Wednesday in Greensboro. The hearing will help Eagles determine whether to issue a temporary restraining order blocking the law.

“Counsel for the proposed intervenors may appear at the hearing and be heard on the merits,” Eagles wrote. “As the intervenors are likely to take a different position on at least some of the issues from that taken by the Attorney General, the intervenors MAY file evidence and a brief no longer than 8,500 words.” That brief is due by 8:30 a.m. Tuesday.

Eagles’ order did not indicate whether Berger and Moore will take part in the case after Wednesday.

Legislative leaders’ motion to intervene indicated that they were compelled to act when they learned Thursday that N.C. Attorney General Josh Stein, a Democrat, would not defend the law.

Lawyer Ellis Boyle, representing Berger and Moore, wrote that they seek “to defend the duly enacted laws of the State of North Carolina. The Legislative Leaders have an interest in upholding the validity of state statutes aimed at protecting unborn life, promoting maternal health and safety, and regulating the medical profession.”

Berger and Moore cite a 2022 U.S. Supreme Court precedent that allowed them to intervene in a federal case defending North Carolina’s voter identification law. “The Supreme Court recognized the Legislative Leaders’ significant protectable interest in protecting valid North Carolina laws and potential impairment if they are blocked from participating in a lawsuit about the validity of North Carolina laws,” Boyle wrote.

“This case proves the necessity and wisdom of North Carolina’s choice about who can speak on the State’s behalf in federal court,” Boyle argued. “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.”

Berger and Moore cite Stein’s tweet late Thursday afternoon. “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.”

Planned Parenthood and Duke Health Dr. Beverly Gray filed paperwork Wednesday seeking an order from Eagles blocking the law.

“The North Carolina legislature radically rewrote the state’s abortion restrictions over the span of mere days, resulting in a law that is riddled with inconsistencies, irrational requirements, and unconstitutional restrictions,” according to a memorandum from the plaintiffs’ lawyers.

The law “bans abortion after the twelfth week of pregnancy with a few narrow exceptions, makes existing restrictions on abortion more onerous, and adds new, burdensome restrictions,” according to the memo. “Plaintiffs are likely to succeed on the merits of their claims that the Act violates the First and Fourteenth Amendments to the U.S. Constitution because the challenged provisions either impose vague standards on Plaintiffs, are impossible to comply with, are irrational, or violate the Plaintiffs’ free speech rights.”

“The provisions of the Act that go into effect on July 1, 2023, should be enjoined in their entirety because Plaintiffs’ claims either reach the constitutionality of the Act as whole, or would require enjoining unconstitutional provisions that are so thoroughly intertwined with the core purpose of the Act, that their omission would leave a statute unlike what the legislature intended to be enforced on its own,” Planned Parenthood’s lawyers wrote.

“If not enjoined before it goes into effect, the Act will impose irreparable harm to Plaintiffs and their patients,” according to the memo. “Plaintiffs’ patients will be subject to unnecessary delays and additional burdens in accessing care, in some cases, denying that care entirely. The Act exposes Plaintiffs to potential criminal liability and disciplinary action, and chills their free speech rights.”

The latest court documents arrived five days after Planned Parenthood and Gray filed suit against the abortion law in U.S. District Court.

Critics of the new law did not aim their legal complaint at leaders of the N.C. General Assembly, which approved the law. Instead the named defendants include state Attorney General Josh Stein, Health and Human Services Secretary Kody Kinsley, nine local district attorneys, the president of the N.C. Medical Board, and the chair of the N.C. Board of Nursing.

Both chambers of the General Assembly voted on May 16 to override Gov. Roy Cooper’s veto of the abortion legislation. All Republicans voted in favor of the legislation. Every Democrat opposed it. The 72-48 House vote and the 30-20 Senate vote met the three-fifths requirement for a veto override.

The law made the following changes to North Carolina’s abortion laws:

• Limit elective abortions in the second and third trimesters.
• Establish an exception for rape and incest through 20 weeks.
• Establish an exception for fetal life-limiting anomalies through 24 weeks.

The law maintained an exception to save the life of the mother through the duration of her pregnancy.