Lawmakers, Stein split on preferred outcome in federal abortion suit

Members of the N.C. House consider legislation in committee. (Image from

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  • Republican state legislative leaders and Democratic Attorney General Josh Stein take opposite sides in the latest court filings linked to a federal abortion lawsuit.
  • Lawmakers urged US District Judge Catherine Eagles to rule in favor of two provisions targeted in North Carolina's 2023 abortion law.
  • Stein supports Planned Parenthood's efforts to have Eagles block the two provisions. One requires doctors to document a pregnancy’s intrauterine location before administering abortion drugs. The second requires hospitalization for all abortions performed after 12 weeks of pregnancy.

Top Republican lawmakers and Democratic Attorney General Josh Stein take opposing positions in the latest court filings linked to a federal abortion lawsuit.

US District Judge Catherine Eagles could decide in the months ahead whether to kill two pieces of the state’s 2023 abortion law. The law limited most abortions after 12 weeks of pregnancy.

Plaintiffs Planned Parenthood and Duke Health Dr. Beverly Gray challenge two of the law’s other provisions. An “IUP documentation requirement” calls for doctors to document a pregnancy’s intrauterine location before administering abortion drugs. The “hospitalization requirement’ mandates that all abortions after 12 weeks must take place in a hospital.

Eagles issued a September 2023 injunction blocking both provisions from taking effect. She has scheduled a July 22 trial date in the case. But Planned Parenthood submitted paperwork on March 1 asking Eagles to issue a summary judgement in the plaintiffs’ favor without holding a trial.

Top lawmakers responded Monday with their own cross-motion for summary judgment. Stein submitted a competing document on the same day supporting Planned Parenthood’s position.

“The U.S. ‘Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision,’” wrote lawyers for state Senate Leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland. The quotation referenced the US Supreme Court’s 2022 Dobbs decision overturning Roe v. Wade.

“For this reason, the Supreme Court held that it was ‘time to heed the Constitution and return the issue of abortion to the people’s elected representatives,’” legislators’ lawyers added. “The North Carolina General Assembly responded by protecting fetal life beginning at twelve weeks gestation, subject to certain exceptions, and by enacting reasonable health and safety measures to protect women who choose abortion.”

Lawmakers labeled the two challenged provisions “common-sense health and safety measures.” “Planned Parenthood alleges that both requirements are unconstitutionally vague and irrational under the Due Process Clause and that the Hospitalization Requirement violates the Equal Protection Clause by distinguishing between abortion and miscarriage.”

“Because the challenged laws implicate no fundamental right and are not unconstitutionally vague, Planned Parenthood must overcome the legislature’s wide discretion to regulate health care and clear the high bar of proving that the laws are not rationally related to any legitimate state interest — even a speculative one,” legislators’ lawyers argued. “Planned Parenthood failed to make that showing here.”

Stein’s lawyers supported Planned Parenthood’s case.

“This Court has already ruled that the two provisions are likely unconstitutional, and preliminarily enjoined their enforcement,” wrote lawyers from Stein’s state Justice Department. “The hospitalization requirement, the Court explained, likely violates the Equal Protection Clause because it restricts certain medical procedures when used to perform an abortion but does not similarly restrict those same procedures when performed for miscarriage management.”

“The Court also concluded that the IUP documentation requirement likely violates the Due Process Clause because it fails to provide providers reasonable notice of the conduct that it prohibits,” Stein’s court filing continued. “Discovery has only confirmed the Court’s prior conclusions.”

“Because the undisputed record evidence confirms that the hospitalization and IUP documentation requirements are unconstitutional, the Court should grant summary judgment to the plaintiffs and permanently enjoin those provisions,” the attorney general’s court filing recommended.

Eagles’ 34-page order last September blocked the targeted provisions while leaving the rest of the new law intact.

“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.”

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.