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Lawsuit challenging NC abortion law could head to trial May 6


Carolina Journal

Staff Report


A lawsuit challenging portions of North Carolina’s new abortion law could head to trial as early as May 6. A federal judge’s injunction in late September has blocked two pieces of the law from taking effect.


A notice filed this week in federal court shows that a trial in the case, Planned Parenthood South Atlantic v. Stein, is “tentatively set” for the court’s May 6, 2024, term. The term “will continue until all the cases on the calendar have been tried. Cases will not necessarily be called trial in the order in which they will appear on the calendar,” according to the notice.

The tentative trial date arrived days after the news that one plaintiff, a Duke Health doctor, had agreed to drop one piece of the legal challenge.


The most recent version of the lawsuit led by Planned Parenthood included a “vagueness challenge” against a piece of the new law dealing with “whether the statute permits Plaintiff Beverly Gray to provide labor induction abortion in a hospital to survivors of rape and incest,” according to a court filing Friday. Critics labeled that piece of the law the “induction ban.”

“By stipulation of the parties, Plaintiff Dr. Gray voluntarily dismisses her challenge to the Induction Ban,” the document filed Friday explained.


“Plaintiff Dr. Gray dismisses no other claim in this matter, and Plaintiff Planned Parenthood South Atlantic dismisses none; therefore, Plaintiffs continue to pursue all remaining claims,” lawyers challenging the abortion law explained.


Plaintiffs continue to target the law’s “IUP Documentation Requirement” and “Hospitalization Requirement.” The first would require doctors to document a pregnancy’s intrauterine location before administering abortion drugs. The second would require hospitalization for all abortions performed after 12 weeks of pregnancy.


US District Judge Catherine Eagles issued an injunction against both of those targeted requirements on Sept. 30, one day before the hospitalization requirement was scheduled to take effect.


Eagles’ 34-page order left the rest of the new law intact. The law restricts most abortions after 12 weeks.


“The plaintiffs are likely to succeed on the merits of their vagueness challenge to the requirement that providers determine and document the probably intrauterine location of a pregnancy before administering medication intended to terminate a pregnancy,” Eagles wrote. “The Act does not provide a clear standard by which providers can make this determination, the provision is open to differing interpretations and does not provide reasonable notice of what is prohibited, and providers are subject to arbitrary accusations that they have violated the provision and to the penalties that accompany those accusations.”


“The plaintiffs are also likely to succeed on the merits of their equal protection challenge to the Act’s requirement that surgical abortions after 12 weeks of pregnancy must be performed in a hospital,” Eagles continued. “The plaintiffs have offered uncontradicted evidence that the same medical procedures used for surgical abortions are used for miscarriage management and that the risks of those identical procedures are the same whatever their purpose.”


“The legislature’s maternal health reasons for requiring these procedures to be done in a hospital when a person who is pregnant as a result of rape or incest or with a life-limiting anomaly chooses to terminate a pregnancy apply equally to the same procedures when a person chooses those procedures to manage a miscarriage,” the judge added. “The plaintiffs have shown the absence of any rational medical basis for distinguishing between these two classes of patients and the defendant-intervenors have not offered any evidence or rationale for that distinction.”


Planned Parenthood and Gray are plaintiffs in the case. 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. State Senate Leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, are considered “defendant-intervenors.”


Berger and Moore have defended the two remaining challenged requirements in court filings.

“As the leading cause of maternal mortality in the first trimester, ectopic pregnancies must be identified and treated before they rupture,” lawmakers’ lawyers argued. “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.”


The legislators’ brief 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 the 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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