A federal judge has upheld a new North Carolina law requiring that abortions performed after 12 weeks of pregnancy must take place in hospitals. At the same time, the judge struck down a piece of the same 2023 law requiring abortion providers to document the existence of an intrauterine pregnancy.
US District Judge Catherine Eagles had issued an injunction in September 2023 blocking both provisions.
In a new 33-page order Friday, Eagles reversed her earlier decision about the hospitalization requirement.
Planned Parenthood South Atlantic and Duke Health Dr. Beverly Gray had filed suit against those two provisions and others in North Carolina’s 2023 abortion law. Eagles had allowed the rest of the law to stand. It bans most abortions after 12 weeks of pregnancy.
“The provision requiring providers to document the existence or probable existence of an intrauterine pregnancy before a medical abortion is unconstitutionally vague,” Eagles wrote in her latest order. “The requirement does not give medical providers sufficient notice of the required conduct, and it does not include sufficient standards to prevent arbitrary and discriminatory enforcement. Therefore, the statute violates the plaintiffs’ due process rights.”
Eagles reached a different conclusion about the piece of the law requiring hospitalization for abortions after 12 weeks.
“The requirement that surgical abortions after 12 weeks of pregnancy be performed in a hospital does not violate the plaintiffs’ constitutional rights to equal protection or due process,” she wrote.
“The plaintiffs have offered credible and largely uncontroverted medical and scientific evidence that this requirement is unnecessary to protect maternal health and safety and will unnecessarily make such abortions more dangerous for many women and more expensive. But since the Supreme Court’s decision in Dobbs, there is no fundamental right to abortion, and the General Assembly need only offer rational speculation for its legislative decisions regulating abortion,” Eagles wrote, citing the 2022 US Supreme Court decision in Dobbs v. Jackson Women’s Health Organization.
“The intervenors have offered such speculation, and the plaintiffs have not negated every conceivable basis the General Assembly may have had for enacting the hospitalization requirement,” Eagles concluded.
State Attorney General Josh Stein and Health and Human Services Secretary Kody Kinsley are named defendants in the case, along with local district attorneys and leaders of the NC medical and nursing boards.
Top Republican leaders in the General Assembly, as “defendant-intervenors,” actually defended the law against the complaints from Planned Parenthood and Gray.
“As the leading cause of maternal mortality in the first trimester, ectopic pregnancies must be identified and treated before they rupture,” lawmakers’ lawyers argued in court filings. “The North Carolina General Assembly addressed this danger by requiring doctors to document an intrauterine pregnancy (IUP) prior to giving women drugs that can mask the symptoms of a life-threatening rupture. The U.S. Food and Drug Administration (FDA) has also addressed this risk by including a warning on mifepristone’s label that a prescriber must ‘exclude [an ectopic pregnancy] before treatment.’ Codifying FDA’s warning into law is rational.”
Legislative leaders also made the case for the new law’s hospitalization requirement for abortions that take place after 12 weeks of pregnancy.
“The General Assembly also sought to provide safe conditions for women who seek abortions beyond the first trimester,” according to a court brief. “As Plaintiffs have conceded, women who have post-12-week surgical abortions may experience life-threatening complications that require hospitalization. What’s more, Planned Parenthood South Atlantic (PPSAT) admits that it has transferred women from its facilities to hospitals due to complications from post-12-week surgical abortions that it could not treat at its facilities.”
“Simply put, the North Carolina legislature had rational reasons to require IUP documentation prior to a chemical abortion and hospitalization for post-12-week surgical abortions. The Constitution affords the North Carolina General Assembly — not Plaintiffs — that choice,” lawmakers argued.
“The North Carolina General Assembly enacted straightforward, rational protections for women who seek certain types of abortions. And for Plaintiffs to ask the Court to grant their Motion for Preliminary Injunction is to ask the Court to impermissibly ‘substitute [its] social and economic beliefs for the judgment of’ these representatives,” lawmakers’ brief concluded.
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