RALEIGH: Federal judges expressed skepticism on Thursday about reinstating North Carolina's ban on abortions after the 20th week of pregnancy, especially after state officials have acknowledged that the prohibition hasn't been enforced.
A three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, heard remote oral arguments from attorneys for abortion providers who successfully sued years ago to block the ban — which provided some exceptions for medical emergencies — and local prosecutors and state officials who are trying to restore it. The judges did not indicate when they would rule.
Echoing the actions of GOP-led legislatures in numerous states, Republicans at the North Carolina legislature have been passing laws expanding abortion restrictions since taking over the General Assembly a decade ago. On Thursday, lawmakers in the North Carolina House approved a measure banning abortions if a woman’s decision centers on the unborn child’s race or a Down syndrome diagnosis.
The 20-week ban was first passed in 1973. That was the year the U.S. Supreme Court issued its Roe v. Wade decision protecting abortion as a constitutional right until a fetus develops enough to live outside the womb, generally between 24 and 28 weeks.
While abortion remains legal in all 50 states, 43 have some form of restriction on the procedure after a fetus becomes viable. North Carolina lawmakers who support the ban have argued that viability can be as early as 20 to 22 weeks.
Ruling on the abortion providers' lawsuit in 2019, U.S. District Judge William Osteen declared the 20-week limit unconstitutional.
In his ruling, Osteen also noted that a 2016 amendment to the state's abortion laws raised the threat of physicians being prosecuted because it narrowed the scope of medical emergencies under which a woman would be exempt from the 20-week limit.
Previously, the procedure was allowed if there was “substantial risk” to the woman’s health. The amendment, approved by the General Assembly, allowed it only in situations where the mother faced a risk of death or serious and irreversible harm from an urgent medical emergency.
State attorneys went to the appeals court to get the ban reinstated. They argue that the physicians lacked legal standing to sue in the first place because they haven't faced any charges or administrative action.
Their fear of prosecution is not credible, Special Deputy Attorney General Michael Wood told the panel, because the ban has never been enforced by the district attorneys serving Orange, Chatham and Durham counties who were sued. Wood acknowledged, however, that there is nothing to prevent current or future DAs from changing their minds.
“Your entire submission has been, ‘We have not and we will not enforce the statute,’” Circuit Judge Diana Gribbon Motz told Wood. “So why are you here defending it?”
Wood responded that it is his agency's job to defend laws: "This is valid state law on the books since 1973. ... It is possible, although it hasn’t happened, that this law could be enforced some day in the future — that's absolutely right.”
Wood works for the state Department of Justice, which is led by Attorney General Josh Stein, a Democrat and abortion-rights supporter. Stein recused himself because of his position.
The physicians' attorney, Genevieve Scott, who works at the Center for Reproductive Rights, argued before the three-judge panel that Osteen was right in concluding the 2016 amendment raised the risk of prosecution.
Scott said the amendment placed "a chilling effect on constitutional rights.”
Referring to the amendment, Judge Albert Diaz asked Wood whether he would agree that “legislatures don’t go about modifying or amending statutes if they have no intent on their being enforced.” Diaz was nominated to the court by President Barack Obama. Motz was appointed by President Bill Clinton.
Judge Julius Richardson, a Donald Trump nominee, said the fact that North Carolina and other states are passing medical-exception laws “seems to me to suggest that the threat of prosecution is more credible," although “maybe not credible enough.”
Federal courts have previously struck down other abortion laws that North Carolina legislators passed. In 2014, they blocked a 2011 law requiring abortion providers to show and describe an ultrasound to the pregnant woman.
Meanwhile, abortion clinics, physicians and others sued in state court last September, seeking to overturn five other abortion restrictions, including a 72-hour waiting period.