Waiting for abortion ruling, legislators offer additional concessions

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

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  • State legislative leaders have signed onto a "joint stipulation" that addresses two points of contention in a federal lawsuit attacking North Carolina's new abortion law.
  • Lawmakers agree there will be no criminal penalties for "advising, procuring, causing, or otherwise assisting someone in obtaining a lawful out-of-state abortion."
  • A second item sets Oct. 1 as the effective date for a provision requiring hospitalization for a victim of rape or incest seeking an abortion after the 12th week of pregnancy.

As the parties in a federal lawsuit over North Carolina’s new abortion law await a ruling today from U.S. District Court, defendants and state legislative leaders have filed a new document addressing two of the law’s points of contention.

Judge Catherine Eagles is expected to decide soon whether to issue a temporary restraining order against part or all of the new law. Planned Parenthood and a Duke Health doctor requested the TRO and a preliminary injunction in connection with their federal lawsuit against new state abortion restrictions.

With no court action, the law would take effect July 1.

The General Assembly already has taken action to address some concerns addressed in the suit. Gov. Roy Cooper signed House Bill 190 into law Thursday. That legislation tweaked Senate Bill 20, the abortion law approved in May. Changes addressed items such as the state’s fetal homicide law, the ability to “advise” pregnant women about abortions after the 12th week of pregnancy, 72-hour waiting periods, mandatory reporting of abortions involving minors, and time limits for medication abortion.

Now the named defendants in the case, led by N.C. Attorney General Josh Stein, and Republican legislative leaders have filed a “joint stipulation.”

The document first addresses criminal penalties for people who help a pregnant woman seeking an abortion in another state.

“All Defendants and Intervenors hereby stipulate and agree that none of the provisions in Senate Bill 20 (Session Law 2023-14) … 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 document explained. “For the avoidance of doubt, this stipulation means that advising, procuring, causing, or otherwise assisting someone in obtaining a lawful out-of-state abortion is not a criminal offense under N.C. Gen. Stat. § 14-23.2.”

The document also focuses on the effective date for one challenged part of the new law.

“All Defendants and Intervenors further stipulate and agree that any recent change in law dealing with a hospitalization for a victim of rape or incest seeking an abortion after 12 weeks will not take effect until October 1, 2023,” according to the joint stipulation. “Therefore, until that date, a qualified physician may perform an abortion after the twelfth week and through the twentieth week of a woman’s pregnancy when the procedure is performed in a licensed abortion clinic and when the woman’s pregnancy is a result of rape or incest.”

Ellis Boyle, the attorney representing legislative leaders, focused on the Oct. 1 date during arguments before Eagles in a hearing Wednesday. Boyle contended that a temporary restraining order was unnecessary. He asked Eagles to allow lawyers to continue filing briefs in the case through September.

Eagles indicated during the hearing that she was unlikely to block the entire law. She described that option as “overbroad.”

Attorneys representing Stein had sided with Planned Parenthood in supporting the temporary restraining order.

Both chambers of the General Assembly voted on May 16 to override Gov. Roy Cooper’s veto of S.B. 20. 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.