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NC’s 20-week abortion ban remains blocked, Fourth Circuit judges rule

Reproductive rights advocates hail victory even as SCOTUS prepares to take up even more onerous Mississippi law

A North Carolina law banning abortions after 20 weeks with narrow exceptions enacted in 2016 remains blocked, the Fourth Circuit Court of Appeals ruled.

North Carolina has maintained a statute since 1973 that purports to ban abortions after 20 weeks with some exceptions when there’s a risk with the continuance of pregnancy. The Republican-controlled legislature amended the statute to limit exceptions for emergencies where the abortion is necessary to avert deaths or significant and irreversible physical harm to the patient. The law also mandates a 72-hour waiting period before an abortion and requires that the state Department of Health and Human Services inspect abortion clinics.

A federal judge ruled in favor of plaintiffs, the Center for Reproductive Rights, the ACLU and Planned Parenthood on behalf of a handful of abortion providers and patients, who challenged the constitutionality of the ban in 2016. Judge William Osteen struck down the law to the extent that it would have prohibited any pre-viability abortion.

“A state may not ban abortions at any point prior to viability,” Osteen wrote. He noted that the 20-week-ban, regardless of the amendment, violates the viability principle laid out in the Planned Parenthood v. Casey case decided by the U.S. Supreme Court in 1992. “Viability does not occur at a fixed number of weeks after the pregnancy begins but rather is determined individually in each case by a doctor,” Osteen wrote. “The ban clearly encompasses at least some pre-viability abortions.”

On appeal, the state did not defend the constitutionality of the law, but rather, argued the providers had no standing to sue. The state refuted that the state historically has not enforced the statutes. Several AG’s offices in other states dominated by the GOP filed amicus curiae, or “friends of the court” briefs in support of the state’s appeal.

Three judges on the Fourth Circuit heard the appeal and affirmed the lower court decision unanimously.

In affirming plaintiffs’ standing to sue, Circuit Judge Diana Gribbon Motz held that the providers face a “realistic danger of sustaining a direct injury” if the law was enforced. “As a nation we remain deeply embroiled in debate over the legal status of abortion,” Motz wrote. “While this conversation rages around us, this court cannot say that the threat of prosecution to abortion providers who violate the law is not credible.”

“Denying people access to abortion can have serious physical, economic, medical, and psychological consequences, especially for Black and Brown people and their families who already face additional hurdles in accessing abortions,” Irena Como, a senior staff attorney for the ACLU of North Carolina said in a statement.

The decision comes after the U.S. Supreme Court recently agreed to review a Mississippi case, in which the Center for Reproductive Rights is also a plaintiff, challenging the state’s 15-week abortion ban. It will be the first time the three Trump-appointed justices on the Court (Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett) will have the opportunity to play a role in deciding a potentially landmark abortion law case. The Court is expected to rule on the question of whether all pre-viability prohibitions on abortion are unconstitutional.

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