A 20-week abortion ban may soon come back to North Carolina as Republican leaders try to reinstate a piece of legislation that was deemed unconstitutional in 2019.
The 1973 ban, which was amended by the state legislature in 2015, prevents abortions after 20 weeks unless the woman's life or a "major bodily function" is at immediate risk.
Three years ago, a federal judge struck down the law, saying it was in clear violation of precedents set by Roe v. Wade and Planned Parenthood v. Casey. Now, with those cases overturned by the U.S. Supreme Court, Republican leaders are trying to get the ban reinstated.
House speaker Tim Moore and Senate leader Phil Berger filed an amicus brief in federal court last week arguing the state should be able to enforce the 20-week ban. The brief, filed July 27, contends that now that Roe and Casey are overturned, there is no legal basis for the injunction that halted enforcement of the law. A separate Supreme Court ruling in Dobbs v. Jackson Women's Health Organization has also hurt the pro-abortion rights case.
"This Court’s reasoning and decision rested on the Supreme Court’s 'viability rule' set out in Casey, which erroneously held that states cannot protect life in a way that places an 'undue burden' on the ability to obtain an abortion before viability—or around 22 weeks’ gestation," Moore and Berger wrote in their brief.
“North Carolina’s abortion statutes are undeniably lawful under Dobbs, and there is no longer any basis for an injunction to shackle the state from pursuing its legitimate interests."
Moore and Berger filed the brief through attorneys with Alliance Defending Freedom, an anti-abortion nonprofit that has defended multiple abortion restrictions in North Carolina—including the ban on telemedicine abortions, the 72-hour waiting period, and the requirement that abortion clinics counsel patients against abortion.
They filed the brief after Democratic attorney general Josh Stein ignored their call to reinstate the 20-week ban. Stein, an abortion rights supporter, is unlikely to defend the law.
Moore and Berger were responding to a request by U.S. District Judge William Osteen that parties in the case submit briefs by August 7 that outline their positions on whether his 2019 ruling retains legal force. Osteen will consider lifting the injunction on the 1973 state law and may reinstate the 20-week ban without lawmaker involvement.
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Follow Staff Writer Jasmine Gallup on Twitter or send an email to jgallup@indyweek.com.
