All eyes on Judge Osteen as decision on blocked NC abortion law imminent
By David Larson
On July 8, Judge William Osteen, a federal judge appointed by President George W. Bush, gave all sides in the Bryant v. Woodall case 30 days to return briefs to the court on whether the injunction blocking North Carolina’s 20-week abortion ban should be lifted. This came after the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health eliminated the foundation of Osteen’s 2019 decision to block the N.C. law, which he found to be in violation of the right to abortion guaranteed under Roe v. Wade and Planned Parenthood v. Casey.
With the 30 days over and all briefs filed, the state’s abortion laws hang in the balance. In a potential clue as to how he is leaning, Osteen suggested in his July 8 order (seen below) that he believed Dobbs removed the foundation of the injunction, saying:
“In light of that holding [Dobbs], it appears the injunctive relief granted in this case may now be contrary to law. As a result, this court finds the parties should be required to submit briefs setting forth their respective positions on whether the injunction retains any legal force and effect…”
The plaintiffs — which include Planned Parenthood of the South Atlantic and several abortion-providing doctors — entered a brief by the Aug. 8 deadline that argued that “The Court should not vacate or modify the May 24, 2019, injunction in this case.”
They argued that “Absent a party’s motion, this Court cannot re-open this case and vacate the judgment or injunction.” This means that because the defendants, who are left-leaning district attorneys and health officials, also do not want Osteen to lift the injunction, there will not be a motion to reverse the decision and they believe he cannot act on his own.
In their brief, the defendants also said that Osteen should not lift the injunction, arguing that because they — district attorneys from Orange and Durham counties — weren’t planning on enforcing the law, it would only “worsen public confusion” to reinstate the ban.
Defendants do not seek modification or lifting of the injunction at the present time. As previously explained in this litigation, the district-attorney defendants do not presently intend to bring criminal charges based on violations of the statute at issue regardless of whether an injunction is in place that prevents such prosecutions. Thus, 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.
The last brief in the matter was from Republican state legislative leaders, even though they were not officially a party in the case. The amici brief was from N.C. Senate Leader Phil Berger of Eden and N.C. House Speaker Tim Moore of Kings Mountain. They argued that:
The answer to the Court’s question in its July 8, 2022, request for supplemental briefing is simple: the current injunction is now contrary to law and should not be permitted to retain any legal force or effect. Whether or not the current parties act, this Court has the authority to modify and vacate its injunction in the interest of justice. Justice requires that the injunction be lifted and the judgment vacated.
Much of the Republican leaders’ brief lays out how the defendants, including the state Department of Justice, has made clear they will refuse to defend the law because they disagree with it. Because of that, Berger and Moore ask for the right to intervene and defend the law themselves in the event that Osteen believes he can’t lift the injunction without a motion.
As explained above, it is neither equitable nor just to maintain the current injunction, and this Court has inherent power to vacate the injunction sua sponte, without a formal motion under Rule 60(b). But if this Court is not inclined to act without a motion, and if Defendants’ legal representative through the Department of Justice refuses to discharge the Attorney General’s sworn duty to defend the state’s laws by moving to vacate the injunction, this Court should allow amici an opportunity to intervene for the purpose of filing a motion under Rule 60(b)(5). The General Assembly has significantly protectable interests in the subject matter of this action; and the resolution of this suit, if Plaintiffs prevail, will impair those interests and the General Assembly’s ability to protect them.
With briefs from all parties submitted and the deadline passed, it will now be up to Judge Osteen to decide how to proceed. There is no specific date by which he must make a decision, but the decision is expected in the coming days.