The US Court of Appeals for the Fourth Circuit on Wednesday upheld a lower court’s decision to strike down North Carolina’s statewide abortion restrictions.
For the past 140 years, North Carolina has criminalized the “procurement or administration of abortion as a felony.” In 1967, the state enacted an exception to the abortion ban that permitted abortions to be performed in the case of “medical emergencies,” which were narrowly defined by the exception. Following the Supreme Court’s 1973 decision in Roe v. Wade, the State enacted a further exception to its abortion ban that permitted abortions performed before the twentieth week of pregnancy.
In 2015, the North Carolina legislature amended the medical emergency exception and 20-week exception. The amendment restricted the performance of an abortion for a medical emergency to being “necessary … to avert the pregnant woman’s death or for which a delay will create serious risk of substantial and irreversible physical impairment of a major bodily function, not including any psychological or emotional conditions.” It also restricted the type of doctors permitted to perform abortions “during the first 20 weeks of a woman’s pregnancy” to “qualified physicians,” which was narrowly defined in the amendment.
This 2015 amendment meant that more abortions could be criminalized, thus raising concerns among abortion providers that they could face prosecution. Therefore, abortion “providers brought suit on behalf of themselves and their patients against the State officials responsible for enforcing [North Carolina’s abortion laws].”
North Carolina, however, argued that abortion providers had no standing to challenge the law because “North Caroling has not prosecuted any abortion providers under [this statute] since the 1973 amendments.”
Judge Diana Gribbon Motz, writing for the unanimous three-judge panel, rejected the state’s argument, agreeing “with the district court that the Providers have established a credible threat of prosecution and therefore have standing to bring this suit.” “As a nation we remain deeply embroiled in debate over the legal status of abortion. While this conversation rages around us, this court cannot say that the threat of prosecution to abortion providers who violate the law is not credible,” wrote Motz.
This is not the first time federal courts have struck down North Carolina’s abortion laws. In 2014, a federal court blocked a 2011 law requiring abortion providers to show and describe an ultrasound to the pregnant woman. A lawsuit in North Carolina state court seeking to overturn five other abortion restrictions, including a 72-hour waiting period, is pending.