NC ban on abortion after 20 weeks can be enforced, judge rules

A federal judge has ruled that North Carolina’s general ban on abortions after 20 weeks of pregnancy can be enforced, following the landmark U.S. Supreme Court ruling allowing states to restrict abortion.

In a court order Wednesday, U.S. District Judge William Osteen lifted an injunction that had blocked the ban, declaring that the injunction went against the Supreme Court ruling that struck down Roe v. Wade.

“Neither this court, nor the public, nor counsel, nor providers have the right to ignore the rule of law as determined by the Supreme Court,” Osteen wrote.

The 20-week abortion ban in dispute had been on the books since 1973. It prohibited abortions after the first 20 weeks of pregnancy, with exceptions for medical emergencies after 20 weeks.

But it has not been enforced recently. North Carolina has legally allowed the procedure until fetal viability, generally considered to be around 23 or 24 weeks of pregnancy.

In 2019, Osteen ruled that the state’s abortion ban was unconstitutional in response to a federal lawsuit, dubbed Bryant v. Woodall, filed in 2016. Osteen ruled that the ban violated Supreme Court precedent, including the landmark decisions that made abortion a constitutional right, Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. His decision was affirmed by the 4th Circuit Court of Appeals in 2021.

But this June, the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization overturned Roe and Casey, placing decisions about the right to abortion in the states’ domain, and bringing back the debate on whether the ban should have been blocked.

On July 8, Osteen filed an order asking parties in the lawsuit to file briefs within 30 days with their positions. He wrote that in light of the Supreme Court ruling, his previous ruling may now be contrary to law.

In a statement last month, Attorney General Josh Stein, a Democrat, said that his office would not ask a federal judge to reinstate the ban and that his agency, the N.C. Department of Justice would not “take action that would restrict women’s ability to make their own reproductive health care decisions.”

“Protecting that ability is more important than ever, as states across the nation are banning abortions in all instances, including rape and incest,” he said.

Senate leader Phil Berger and House Speaker Tim Moore asked Osteen to reverse his 2019 ruling. Berger and Moore, Republicans who are not official parties in the lawsuit, wrote they were getting involved following Stein’s inaction and that they wanted the ban reinstated.

“North Carolina’s abortion statutes are undeniably lawful under Dobbs, and there is no longer any basis for an injunction to shackle the state from pursuing its legitimate interests,” Berger and Moore wrote in their brief.

Both plaintiffs and defendants filed motions asserting that they did not want the previous rulings reversed or modified. Plaintiffs include Planned Parenthood and North Carolina doctors, while defendants consist of district attorneys, tasked with enforcement, and the N.C. Department of Health and Human Services, which regulates abortion in the state.

The attorney general’s office wrote in its brief that the defendants, which include the district attorneys, do not plan to bring criminal charges based on the ban, so there is “no indication that modifying or lifting the injunction would have any effect on the statute’s enforcement.”

“Given this reality, the risk that modifying or lifting the injunction would worsen public confusion in the immediate aftermath of the Supreme Court’s recent disruption of decades of settled law counsels in favor of maintaining the status quo,” they wrote.

With the ban now overturned, the question remains whether legislation regarding abortion will be introduced and passed. Republicans have expressed a desire to enact more restrictions. Most recently, Moore told The N&O last month that while not “certain at this point … I do think you would see more protection for the unborn.”

In turn, Berger told reporters in June that abortion is “a serious enough issue” that senators will take time and then “deal with any potential changes in the next legislative session” next year. He has encouraged them to “look at what they would see as what North Carolina’s rules should be if we were writing on a clear slate,” Berger said, The N&O reported.

A lot of the future of the state’s reproductive laws rides on whether the makeup of the legislature changes this fall. Republicans hold the majorities in both chambers of the General Assembly, but Democratic Gov. Roy Cooper holds the power to veto laws. The chances of passing future abortion bills may come down to whether Republicans gain a supermajority, which allows them to override vetoes.

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