NC abortion lawsuit could head back to federal court in mid-September

Members of the N.C. House consider legislation in committee. House Speaker Tim Moore, R-Cleveland, presents his anti-riot bill in committee. (Image from

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  • The lawsuit challenging North Carolina's new abortion law would head back to federal court on Sept. 12 or Sept. 13, under two competing timelines put forward by parties in the case.
  • All sides agree on the date for a hearing on a proposed preliminary injunction in the case. Plaintiffs and state legislative leaders offer different dates for dealing with expert witnesses, depositions, and briefing.
  • The proposed timeline arrived on the same day that all parties agreed a temporary restraining order against one piece of the law could last longer than two weeks.

The lawsuit challenging North Carolina’s abortion law would return to a federal courtroom in mid-September, under competing plans disclosed Wednesday. Parties in the case filed a joint motion offering alternative timelines for addressing the case’s ongoing legal dispute.

Under either plan, U.S. District Judge Catherine Eagles would hold a hearing on Sept. 12 or Sept. 13. Eagles would use the hearing to help her determine whether to issue a preliminary injunction against portions of the law.

While plaintiffs challenging the law and legislative leaders defending the law agree on the mid-September hearing, they suggest different deadlines for disclosing expert witnesses, taking depositions, and filing competing legal briefs.

The joint motion arrived on the same day that all parties agreed Eagles’ existing temporary restraining order against one section of the law could last longer than two weeks.

Eagles issued the order Friday. She allowed most of the new law to take effect July 1. But she placed a two-week TRO on a section dealing with a documentation requirement linked to use of abortion drugs.

“All Defendants and Intervenors hereby consent and agree to the extension of the temporary restraining order until such time as the Court rules either on Plaintiffs’ motion for a preliminary injunction, or on a renewed motion for a preliminary injunction that Plaintiffs will file by a date to be set by the Court,” according to a joint motion filed Wednesday.

N.C. Attorney General Josh Stein and state Health and Human Services Secretary Kody Kinsley are named defendants in the case, along with local district attorneys, and leaders of the N.C. medical and nursing boards.

State Senate leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, are “intervenors” in the case. Eagles issued an order Monday allowing legislative leaders to defend the law moving forward. Berger and Moore had responded to Stein’s public statement that he would not defend the law in court.

Eagles indicated on Friday that she plans to issue a scheduling order for the case this week.

The judge rejected requests from plaintiffs Planned Parenthood and a Duke Health doctor, supported by Stein, to block other new abortion restrictions. Eagles cited the impact of amendments Gov. Roy Cooper signed into law Thursday. She also noted additional stipulations legislative leaders agreed to make Thursday.

The one section targeted by Eagles’ order involved the new law’s “intrauterine location and documentation provision.” Supporters and critics of the law had addressed the issue during Wednesday’s hearing in Eagles’ Greensboro courtroom.

“Failing to comply with the intrauterine documentation requirement may carry the possibility of criminal penalties,” the judge wrote. “If the failure to so document the existence of an intrauterine pregnancy makes the medical abortion unlawful, as the intervenors appeared to contend at the hearing, then the physician’s actions are not excepted from the fetal homicide statute. … This warrants a strict standard of review for vagueness.”

“The plaintiffs are likely to succeed on their claim that the intrauterine documentation requirement as amended is unconstitutionally vague,” Eagles wrote. “If the pregnancy is in early stages and the physician cannot document the existence of an intrauterine pregnancy, then the physician cannot comply with this requirement.”

The judge rejected requests to block any other part of the amended law.

The Planned Parenthood suit challenges a provision requiring hospitalization for surgical abortions performed after 12 weeks of pregnancy. Eagles agreed with parties in the case that the challenged provision takes effect on Oct. 1. “Therefore, an immediate temporary restraining order is unnecessary,” Eagles wrote. “The plaintiffs’ challenges to the hospitalization requirement can be heard after full briefing on the motion for a preliminary injunction.”

Eagles agreed with plaintiffs that a ban on advising women about out-of-state abortions would violate the First Amendment. But she cited amended language and Thursday’s stipulation that nothing in the law would “impose civil, criminal, or professional liability on an individual who advises, procures, causes, or otherwise assists someone in obtaining a lawful out-of-state abortion.”

“The Court agrees with this construction,” Eagles wrote. “So construed, the ambiguities and First Amendment issues raised by the plaintiffs are unlikely to rise to an unconstitutional level and a temporary restraining order is not necessary at this stage.”

The judge explained that “many of the inconsistencies and ambiguities identified by the plaintiffs in the original Act have been resolved by the amendments” Cooper signed into law.

“1. It is not fetal homicide to perform a lawful abortion under the Act;

2. Providers are not required to verify that the gestational age is less than 70 days for a medical abortion to be lawful;

3. There is a medical emergency exception to the 72-hour mandate, and the 72 hours do not restart if the name of the physician who will perform the abortion is not known or changes;

4. Providers are not required to inform the patient whether insurance will cover the abortion; and

5. Providers are not required to file complete reports for minors within three days.”

“The amendments are likely to moot the plaintiffs’ vagueness challenges to the provisions in the original Act directed to these matters,” Eagles wrote. “Because the plaintiffs are no longer likely to be successful on the claims based on the original language of the Act, the motion for a temporary restraining order as to these provisions will be denied.”