Latest amendments do not stop legal fight to block NC abortion law

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  • Critics of North Carolina's new abortion law are drawing a federal judge's attention to new legislation that would tweak the law. They say the new legislation should have no impact on their request for a temporary restraining order.
  • Planned Parenthood and Duke Health Dr. Beverly Gray seek an order that would block the new law from taking effect July 1.
  • The plaintiffs admit that provisions in the latest version of House Bill 190 would "likely render many (but not all) of their claims moot."
  • U.S. District Judge Catherine Eagles will hold a hearing in the case Wednesday morning in Greensboro.

Plaintiffs challenging North Carolina’s new abortion law are drawing a federal judge’s attention to newly released legislation that would tweak the law. Critics say the tweaks should not stop their quest for a court order blocking the law.

In paperwork filed Monday, Planned Parenthood and Duke Health Dr. Beverly Gray highlighted the state Senate’s recent consideration of House Bill 190. Senators first considered the measure Thursday. The Senate took the first of two required votes, endorsing it with a 27-17 party-line vote. Republicans favored the measure. Democrats voted no.

The bill features revisions to abortion law changes made in Senate Bill 20. Most proposed revisions “seem directly responsive to Plaintiffs’ complaint,” Planned Parenthood’s lawyers wrote.

The new court document cites five changes. They affect items such as the state’s fetal homicide law, the ability to “advise” pregnant women about abortions after the 12th week of pregnancy, 72-hour waiting periods, mandatory reporting of abortions involving minors, and time limits for medication abortion. In each case, the document says plaintiffs challenged related provisions in the original law.

Even if the state Senate finalizes H.B. 190 as early as today and the House accepts the changes soon afterward, the bill still would head to Gov. Roy Cooper. He has another 10 days to sign or veto the measure.

“The amendments, however, do not change the effective date, which, for most of the provisions of the Act that Plaintiffs challenge, is July 1, 2023,” according to the court filing. “As a result, if the proposed amendments do not become law before that date, the current version of the Act would take effect despite these proposed changes, and Plaintiffs’ need for a temporary restraining order would be unchanged.”

“The pending changes to the Act, if adopted as currently written, will affect Plaintiffs’ claims and likely render many (but not all) of their claims moot,” Planned Parenthood’s lawyers wrote. “But even if the amendments become law before July 1, 2023, Plaintiffs’ need for a temporary restraining order persists because Plaintiffs will need time to assess and comply with this complex and ever-changing law.”

“Moreover, Defendant Department of Health and Human Services (“DHHS”) has already promulgated forms that health care providers must use to comply with the pre-amendment version of the Act,” the court filing continued. “If the proposed amendments become law, DHHS will need time to adjust those forms.”

The lawsuit heads before U.S. District Judge Catherine Eagles Wednesday morning in Greensboro. State legislative leaders learned Saturday that they will be able to participate in that hearing, even though they are not officially parties to the lawsuit.

State Senate leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, filed paperwork Thursday to intervene in the case, titled Planned Parenthood v. Stein. Legislative leaders seek to defend the law.

Wednesday’s 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 cited 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 Gray initially filed suit on June 16. They followed up June 21 with a motion for a temporary restraining order and preliminary injunction.

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.