Legislative leaders seek to defend new abortion law next week in federal court

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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  • The N.C. General Assembly's top leaders seek to intervene in a federal lawsuit challenging the state's new abortion law.
  • The suit heads to hearing Wednesday in Greensboro. Plaintiffs are seeking a temporary restraining order and preliminary injunction against the law. Without court action, much of the law will take effect July 1.
  • The U.S. Supreme Court ruled last year that legislative leaders could intervene in a federal suit challenging North Carolina's voter identification law.

North Carolina’s top legislative leaders want to defend the state’s new abortion law against a federal lawsuit. They seek to intervene in the case as the suit heads to a hearing next week in Greensboro.

Senate leader Phil Berger. R-Rockingham, and House Speaker Tim Moore, R-Cleveland, filed paperwork Thursday seeking “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,” wrote attorney Ellis Boyle.

“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.”

U.S. District Judge Catherine Eagles is scheduled to hold a hearing Wednesday morning in the case. Plaintiffs are seeking a temporary restraining order and preliminary injunction against North Carolina’s new law. Much of the law is scheduled to take effect July 1.

Planned Parenthood and Duke Health Dr. Beverly Gray filed paperwork Wednesday seeking a federal court order 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.

The new suit argues that parts of the new law, originally known as Senate Bill 20, are unconstitutional. Planned Parenthood argued that the U.S. Supreme Court’s 2022 Dobbs decision did not insulate the N.C. law from a legal challenge.

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 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.

Sens. Joyce Krawiec, R-Forsyth, Lisa Barnes, R-Nash, Amy Galey, R-Alamance, and Vickie Sawyer, R-Iredell, released the following statement on the override: 

“This is a monumental moment for women, children, and families in North Carolina. Our bill puts to rest all of the noise and lies we’ve been hearing this past week, and brings to life a culture that cherishes motherhood and saves the lives of the unborn.”