NC abortion restrictions have been fought in court. Here’s where the cases stand.
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More than a year after lawsuits were filed challenging North Carolina’s abortion laws, several provisions remain in limbo.
U.S. District Judge Catherine Eagles struck down those provisions, most recently on Friday when she ruled on parts of the 12-week abortion ban GOP lawmakers passed last year.
While the main thrust of that law went into effect July 2023, and had not been successfully challenged in the courts, Planned Parenthood and other abortion providers challenged two of the law’s provisions. Those provisions had been temporarily blocked since September, pending a ruling.
On Friday, Eagles struck down one provision while upholding another.
A second case that remains in court takes aim at the state’s restrictions on medication abortions, and was filed in January 2023, after the conservative-majority U.S. Supreme Court overturned the constitutional right to abortion, but before North Carolina passed its new law.
Eagles issued a ruling in the medication abortion case in June, which is now being appealed.
Here’s a look at how the two cases originated and where they stand now.
Planned Parenthood’s lawsuit over new abortion law
The case challenging provisions of the state’s new abortion law began in June 2023, when Planned Parenthood filed a lawsuit in federal court, and sought a temporary restraining order to prevent the entire law from taking effect as the legal challenge moved forward.
(In addition to lowering the threshold after which most abortions are banned to 12 weeks, the law also put into place additional requirements for patients and providers, including a requirement that women receiving medication abortions complete two additional in-person appointments. The law also included more than $180 million in state and federal funds for services including child care and foster care.)
Eagles didn’t grant that request but blocked one provision of the law, which requires physicians who prescribe medication abortions to document the existence of a pregnancy within the uterus at the early stages of gestation.
Abortion providers who challenged the law argued the provision doesn’t give guidance on how to satisfy the requirement, and could block physicians from prescribing abortion pills early in pregnancies, when an embryo may not be able to be located using an ultrasound.
Eagles agreed with those concerns and issued a preliminary injunction in September, calling the provision “unconstitutionally vague.”
Friday, Eagles said that the requirement doesn’t give physicians “sufficient notice of the required conduct,” and “does not include sufficient standards to prevent arbitrary and discriminatory enforcement.” Eagles said the provision violates the due process rights of the plaintiffs.
Eagles had temporarily blocked another provision in that order. The provision would have required anyone trying to terminate their pregnancy after 12 weeks — under one of the law’s exceptions for rape and incest, fetal abnormalities, or severe medical emergencies — to have the procedure in a hospital.
But on Friday, Eagles kept the hospitalization requirement in place, siding with GOP legislative leaders who intervened in the case to defend the law.
She said that abortion providers “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.”
However, she said, after the U.S. Supreme Court overturned Roe v. Wade, “there is no fundamental right to abortion.”
That means that GOP lawmakers only needed to show “rational speculation” for their “legislative decisions regulating abortion.” Eagles said Republican leaders had done so, and abortion providers “have not negated every conceivable basis” lawmakers had for enacting the requirement.
OB-GYN lawsuit over regulations on abortion pills
In the other case, a UNC Health OB-GYN sued North Carolina over regulations on the use of medication abortion.
Dr. Amy Bryant challenged state laws in place around prescribing mifepristone, such as requiring doctors to provide the pill in-person at certified facilities, and after a 72-hour waiting period. Bryant argued that the U.S. Food and Drug Administration’s requirements, which are more lenient, preempt North Carolina’s restrictions.
The top legislative leaders, House Speaker Tim Moore and Senate leader Phil Berger, joined the lawsuit as defendants. In court filings, they argued the FDA does not have the final say over “one of the most divisive and consequential social and political issues of our day and the past fifty years.”
But Eagles ruled largely in favor of Bryant, striking down several of the state regulations.
She decided other requirements were not preempted by FDA regulations, such as requirements for an in-person, 72-hour advance consultation and blood type testing, and allowed them to stand.
That means that currently, in North Carolina:
▪ Mifepristone does not need to be taken in a clinical setting and can be taken in one’s own home.
▪ The pill can be provided by pharmacies and not solely by licensed physicians.
▪ A follow-up appointment is not required, but an advance consultation is.
▪ Enforcement, penalization, or requiring compliance with any medication abortion provisions preempted by the FDA is prohibited.
But Eagles’ ruling could be reversed. On June 20, Berger and Moore appealed the portion of the ruling that went against them to the federal appellate court encompassing Maryland, Virginia, West Virginia, North Carolina, and South Carolina.
What to know about mifepristone
Medication was used for 63% of abortions nationwide in 2023.
Mifepristone is the first part of a combination of two drugs used to end a pregnancy. The FDA has approved the use of the two-drug regimen within the first 10 weeks of gestation.
Medication abortion can be done in two ways: either with that combination of mifepristone and misoprostol, the most common method in the United States, or by using only misoprostol.
Mifepristone blocks a hormone to stop a pregnancy from progressing, while misoprostol empties the uterus. Solely using misoprostol is effective, but studies show it may cause more side effects.
The FDA allowed the use of mifepristone for abortions in 2000, and more recently has loosened restrictions on the drug. In January 2023, it approved a protocol for certified pharmacies to provide mifepristone directly to patients. This means, under FDA protocols, patients can get a prescription via mail after a consultation, including a telehealth consultation.
In June, the U.S. Supreme Court unanimously rejected a challenge brought against FDA approval of mifepristone, allowing its continued use.
This story was originally published July 1, 2024 at 5:00 AM with the headline "NC abortion restrictions have been fought in court. Here’s where the cases stand.."
