Stein, legislative leaders offer contrasting claims in federal abortion law suit

The N.C. General Assembly's Joint Appropriations Committee meets on Feb. 17, 2021. (screen shot from

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  • Republican state legislative leaders and Democratic N.C. Attorney General Josh Stein take contrasting approaches to a proposed temporary restraining order against North Carolina's new abortion law.
  • Stein urges U.S. District Judge Catherine Eagles to issue a TRO blocking the law from taking effect July 1. Legislative leaders argue the order is unnecessary. They urge Eagles to continue briefing in the case through August and September.
  • Eagles will hold a hearing in the case Wednesday morning in Greensboro.

Republican legislative leaders and Democratic Attorney General Josh Stein put forward contrasting arguments Tuesday, as they prepared for a federal court hearing in a lawsuit challenging North Carolina’s new abortion law.

U.S. District Judge Catherine Eagles will conduct the hearing Wednesday morning in Greensboro. Eagles will decide whether to issue a temporary restraining order blocking the law from taking effect as scheduled July 1.

Stein supports a TRO. Legislative leaders oppose the idea.

Stein is the lead defendant in the case filed by Planned Parenthood and Duke Health Dr. Beverly Gray. Eagles issued an order Saturday allowing Senate leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, to intervene in the hearing. Legislative leaders based their proposed intervention on Stein’s announcement Thursday that he would not defend the law.

Planned Parenthood’s lawsuit does “not require immediate, emergency relief,” wrote Ellis Boyle, the lawyer representing Berger and Moore. “The General Assembly is working to pass and enact, with or without the Governor’s signature, a technical and conforming bill to make changes to clarify and address most, if not all, aspects of Plaintiffs’ claims about the Act.”

With the “T&C bill,” House Bill 190, moving through the General Assembly, “there is no imminent or irreparable harm that Plaintiffs, or any patient or provider in North Carolina, could face from the Act until at least October 1, 2023.”

Lawmakers suggest that Eagles hold off on issuing a restraining order and schedule further briefing, “to conclude in August or September 2023,” Boyle wrote.

The brief also defends lawmakers’ right to enact abortion restrictions. Boyle challenges plaintiffs’ arguments that the new law’s hospitalization requirement is “irrational.”

“The Legislative Leaders forecast that they will oppose preliminary injunction on this issue, if Plaintiffs seek it,” he wrote. “It is not unconstitutional for the State to regulate abortion and, historically, it has done so on this very topic. States have a long-exercised and historic power to regulate health and safety.”

“Plaintiffs posit an unchallenged opinion that ‘the hospitalization requirement lacks any medical basis or common-sense justification, and it bears no plausible relationship to any legitimate government interest.’ The Legislative Leaders not only disagree, but under a normal briefing schedule, with discovery on the topic, intend to provide at least the very minimal amount, and actually much more, of a rational basis connection to support the law,” Boyle wrote.

“The mere fact that certain factions dislike the law supported and passed by the majority of the members of the General Assembly elected by the public does not make the law irrational,” he added.

Stein’s brief argued that the new law “is riddled with incoherence and uncertainty. Some provisions impose contradictory obligations on doctors; others cross-reference laws that are now repealed. The upshot is that doctors in North Carolina simply do not know what they can and cannot do without risking criminal liability.”

“The Constitution does not permit such uncertainty,” Stein’s brief added. “To satisfy due process, laws must be clear enough ‘that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.’”

The new law “cannot satisfy this standard — and the General Assembly has effectively conceded as much,” Stein argued. “Last week, the legislature introduced a series of amendments designed to revise many of the unconstitutional provisions identified in this lawsuit. If those amendments are passed, they may remedy some of the constitutional violations that Plaintiffs allege. But unless and until the current law is repealed or significantly amended, immediate injunctive relief is necessary to avoid a due-process violation.”

Stein predicts Planned Parenthood and Gray will win their case. “In short, because (1) Plaintiffs are likely to prevail on the merits of their due-process challenges and (2) every equitable factor favors an injunction to clarify the law, this Court should grant Plaintiffs’ motion,” according to his brief.

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 are 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.