Stein backs Planned Parenthood’s bid to block parts of NC abortion law

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  • NC Attorney General Josh Stein officially supports Planned Parenthood's effort to block part of North Carolina's new abortion law, according to documents filed Monday in U.S. District Court.
  • Stein opposes "sweeping new restrictions on abortion access, significantly curtailing women’s reproductive freedom in this State."
  • U.S. District Judge Catherine Eagles will hold a Sept. 21 hearing in the case. She will decide whether block two sections of the law.
  • Most sections of the law, including new prohibitions on abortions after 12 weeks of pregnancy, took effect July 1.

NC Attorney General Josh Stein officially supported this week Planned Parenthood’s effort to block two pieces of the state’s new abortion law. In documents filed Monday, Stein signed onto the abortion group’s request for a preliminary injunction.

“Less than three months ago, the North Carolina General Assembly voted to pass a set of sweeping new restrictions on abortion access, significantly curtailing women’s reproductive freedom in this State,” Stein’s N.C. Department of Justice lawyers wrote. “Plaintiffs now move for a preliminary injunction against two of the Act’s provisions.”

“The first requires all abortions after the twelfth week of pregnancy — abortions in cases of rape, incest, or life-limiting fetal anomalies — to take place at a hospital rather than at an abortion clinic. The second requires a physician to ‘[d]ocument … [the] existence of an intrauterine pregnancy’ before providing an abortion. This Court should enjoin both provisions,” according to Stein’s court filing.

“The hospitalization requirement is wholly irrational,” Stein argued. “It requires so-called ‘surgical abortions’—abortions that do not actually involve any surgical procedures, like incisions or cutting — to take place only at hospitals. The requirement therefore prevents survivors of sexual violence, as well as patients with life-limiting fetal anomalies, from seeking an abortion at licensed abortion clinics — even though the vast majority of abortions are performed safely in that clinical setting; even though the law permits individuals to undergo riskier procedures at nonhospital facilities; and even though the law allows miscarriages to be treated using the very same procedures without any hospitalization requirement. Thus, the hospitalization requirement serves only to increase health risks for these vulnerable patients, decrease the number of providers available to them, and impose additional, unjustified costs.”

“As for the intrauterine pregnancy-documentation requirement, because the Act on the one hand appears to allow abortions up to twelve weeks and on the other prohibits those abortions when the documentation requirement cannot be met, doctors will be put to an impossible choice: turning away patients from getting much-needed medical care or risking criminal sanction,” according to Stein’s brief. “Not only are doctors put to this impossible choice, the contradiction in the documentation requirement also makes it impossible for executive-branch defendants who are charged with enforcing these criminal provisions to understand what conduct is permitted and what conduct is prohibited.

In a separate filing, Stein argued that the new law “imposes other significant restrictions on abortion access that will harm patients and impede health care professionals from providing quality care.”

The attorney general’s briefs reached U.S. District Court on the same day that other defendants and state legislative leaders responded to the latest version of the lawsuit. Planned Parenthood and Duke Health Dr. Beverly Gray are plaintiffs in the case.

No other defendant took an official position supporting a preliminary injunction. State legislative leaders, who are intervening in the case to defend their law, rebutted Planned Parenthood’s arguments.

“The Act is constitutional and should be sustained because it satisfies rational basis review. A law regulating abortion is entitled to a ‘strong presumption of validity’ and ‘must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests,’” wrote lawmakers’ lawyers, citing the US Supreme Court’s 2022 decision in the Dobbs case.

Planned Parenthood and Gray filed paperwork on July 24 renewing their request for a preliminary injunction.

The new law permits abortions through 12 weeks of pregnancy but prohibits the procedure with exceptions afterward.

U.S. District Judge Catherine Eagles issued a June 30 order temporarily blocking one portion of the law, labeled the “IUP Documentation Requirement” in court paperwork. That section of the law requires doctors to document an intrauterine pregnancy when using abortion drugs.

Planned Parenthood seeks to convert that temporary restraining order into an injunction. The group’s most recent court filing also seeks an injunction against the “Hospitalization Requirement.” That section of the law requires abortions performed after 12 weeks of pregnancy to take place in a hospital rather than an abortion clinic. That section of the law is now scheduled to take effect Oct. 1.

“This spring, the North Carolina General Assembly radically rewrote and expanded the state’s abortion restrictions, banning abortion after the twelfth week of pregnancy with few exceptions and passing a law riddled with inconsistencies, irrational requirements, and unconstitutional threats to North Carolinians’ health and rights,” plaintiffs’ lawyers wrote.

Eagles is scheduled to hear arguments in the case on Sept. 21 in Greensboro. That hearing could be delayed four days depending on the progress of an unrelated federal court case.

In the latest version of its lawsuit, filed July 17, Planned Parenthood acknowledged that lawmakers made changes through House Bill 190 that addressed many complaints found in the original lawsuit filed in June against Senate Bill 20. At that time, Planned Parenthood and Gray had asked Eagles to block the entire law from taking effect.

“As a result of the changes to the Act, many of Plaintiffs’ original claims have been resolved,” plaintiffs’ lawyers wrote. Three complaints remain. First, plaintiffs “maintain their due process challenges” to the new law’s “IUP Requirement.” Second, Planned Parenthood challenges the “hospitalization requirement” set to take effect Oct. 1.

Third, “Dr. Gray adds to the Amended Complaint allegations about the vagueness of the Induction Abortion Ban.” The updated lawsuit mentions a “lack of clarity as to whether a hospital can provide an induction abortion, which involves the use of medication, to a rape or incest survivor after the twelfth week of pregnancy.”

“Plaintiffs who fail to comply with the Act will face disciplinary action, and violations of some sections of the Act carry felony criminal penalties,” lawyers wrote in the updated complaint.

The suit labels the abortion law “an attack on families with low incomes, North Carolinians of color, and rural North Carolinians.”

Additional court filings from all parties in the case are expected through Sept. 12.

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 earlier this month allowing legislative leaders to defend the law moving forward. Berger and Moore asked to intervene after learning that Stein would not defend the law in court.

Eagles’ Sept. 21 hearing will not involve testimony from witnesses. “The motion for preliminary injunction will be decided based on the record, and the Court does not contemplate receiving live evidence,” Eagles wrote on July 6.