GREENSBORO, N.C. (WGHP) – You will have to wait at least a couple of days – maybe longer – before North Carolina’s new 12-week abortion law would go into effect.
Most of Senate Bill 20 – with or without stipulations added Tuesday in House Bill 190 – is scheduled to become law on Saturday, but Federal District Judge Catherine Eagles may have a say about that, which she has promised to voice by Friday.
Eagles, who serves in the U.S. District Court for the Middle District of North Carolina, heard arguments Wednesday morning for a temporary restraining order during an emergency hearing in a lawsuit brought by Dr. Beverly A. Gray of Durham, the ACLU of North Carolina and Planned Parenthood South Atlantic, who sought not only a temporary injunction but more permanent relief from the law.
For more than two and a half hours, about a half-dozen attorneys – including three for the plaintiffs, a representative of Attorney General Josh Stein and an intervening attorney on behalf of the North Carolina General Assembly and other consulting parties – filled the air in Eagles’ ornate old courtroom with arguments, pleas and suggestions.
When they left, they had with them draft language of a TRO that Eagles emphasized was only for the purpose of discussion and not her final decision. She declined to allow copies to be shared with the maybe 15 reporters who covered the proceedings.
Eagles asked the attorneys to offer their thoughts on her suggested decision by no later than Thursday afternoon, and she promised a resolution – a yes or a no – on Friday, although “not at 11 o’clock at night.”
This is all very loose because so many aspects of this controversial lawsuit remain in motion, and not all the cards are dropping face up. Gov. Roy Cooper, for instance, has until July 7 to determine how he will handle House Bill 190, the bill that contains amendments to the abortion law.
SB 20, the “Care for Women Children and Families Act,” originally scheduled to take effect on Saturday – with the criminal portion not relevant until Oct. 1 – tightens to 12 weeks the window for an elective abortion but retains for longer periods the access to abortions based on exceptions for rape, incest, the health of the mother and fetal abnormalities. The bill also stipulates by whom, when and where an abortion may be performed and adds funding for a variety of related initiatives.
Defendants’ filing in SB 20 lawsuit by Steven Doyle on Scribd
Critics had complained that the 46-page bill was pushed through the General Assembly within 48 hours of first being revealed. The Senate had spent about six hours debating the bill. Both chambers voted along party lines, with some absences, as was the case with the overrides of Cooper’s veto.
Attorneys for Planned Parenthood and the ACLU both argued that because the lawmakers’ work was both “hastily and sloppily” done, there is a need for the court to step in and repair the plan. Their lawsuit cites numerous technical and apparently contradictory points included in the bill.
The Senate had attempted to repair some of that and to remove the footing for the lawsuit by attaching amendments drafted by Sen. Joyce Krawiec (R-Forsyth), who on Thursday surprised her comrades with the suggestion when HB 190 was up for debate.
Another dozen amendments introduced by the Democrats were tabled, but both chambers ultimately passed the bill with almost unanimous votes. Attorneys on Wednesday agreed that these amendments render several of the plaintiffs’ arguments as moot, and Eagles agreed.
She mentioned several times that if Cooper were to sign HB 190 – which he received on Wednesday after the House’s vote – in the next couple of days that would clarify a lot of this. But he is not expected to sign, and if he vetoes, that will require convening the House and Senate after their session likely has ended for override votes, which also could add complexity.
W. Ellis Boyle, an attorney from Raleigh hired by Senate Leader Phil Berger (R-Rockingham) and House Speaker Tim Moore (R-Cleveland), said an override in July could take two to four weeks because it is more difficult to gather members for a vote. An override is based on aye votes from three-fifths of all present in each chamber.
Cordial hearing
“It takes a lot longer than it would in, say, March,” Boyle said.
But that was the least of the issues discussed on Wednesday in what basically was a cordial hearing. No arguments broke out, and Eagles mostly had to encourage lawyers to speak up in the cavernous room. About 100 media, attorneys and interested observers watched.
Brigitte Amiri, representing the ACLU, did most of the talking for the plaintiffs – with some targeted work by Peter Im of Planned Parenthood – and Boyle and Sarah G. Boyce of the attorney general’s office – did all the talking from the defendants’ table.
Attorneys for the Department of Health & Human Services and medical employees’ associations were on hand, as was a representative for Forsyth County District Attorney Jim O’Neill. DAs for Guilford and Wake counties also were identified in the suit but not represented.
Eagles offered a careful preliminary outline for how she sees the case and the proceedings unfolding, and she walked the lawyers through those point by point, focusing on the items rendered moot by the amendments bill, those left dangling and then the schedule and procedure with how to deal with the answer.
More than once she said she had been thinking, reading and working ahead but had made no final determination. She said that most TROs lasted for 14 days and that a temporary injunction could be the next step.
Lawyers discussed conferencing about a future schedule that appeared to suggest further court hearings in September, working backward from the Oct. 1 date specified in SB 20. But the number of issues were fewer.
Key topics
Disputes about 12-week vs. 70-day conflicts on abortion windows, for instance, seemed to be rectified by passed amendments. So were some of the relevant communications about physicians and insurance and the criminal aspects of the law.
Stein had said he would defend the suit only on a couple of points – which is why Boyle was hired to intervene for the state – but Boyce typically said she agreed with the points made by plaintiffs in the hearing. The criminal punishment was her primary issue.
Outstanding issues
Still, there are sticking points that the lawyers debated in the hearing. These issues remain to be judged by Eagles:
- The “location” of a pregnancy, meaning not the facility but “where” in a patient’s body a pregnancy is confirmed. Whether a patient has a true cervical pregnancy and not an ectopic pregnancy is crucial, and sometimes the determination in a scan can be delayed, affecting the ability to provide care during the open window. This also has a profound effect on whether abortion medication can be used, which can’t happen in an ectopic pregnancy. SB 20 and the amendments have left this “vague,” Amiri said. Boyle said this could be remedied with a stipulation about what the law says.
- Whether medical professionals who advise patients about having a legal abortion in another state would be violating the criminal penalty if that conversation is after the 12-week limitation. The bills and amendments don’t specify, Amiri argued, and a suggested amendment by Democrats on that issue was tabled in the Senate. Amiri argued that such a limit would violate a medical provider’s First Amendment rights. Boyle said that the language in the bill had been part of the abortion statute since 1973, when the state passed the current 20-week limit – which became law after the U.S. Supreme Court’s Dobbs decision – and should not be seen as a change. Boyce said she didn’t “want to make a mountain out of a molehill. Given the criminal penalties, the attorney general does believe it must be clear about what is criminal under this.” Said Eagles: “It’s a different world than it was a year ago.”
- Whether the Department of Health & Human Services is ready to handle the new abortion requirements with forms for physicians, patients and insurers by the start of the new law on Saturday. Amiri suggests that the contradictions and confusions have delayed that to almost an impossibility, but Boyce said that the law was passed on May 4 and the veto by Cooper was overruled about two weeks later. “They’ve had six weeks to get the forms,” he said. “If you go back to when the bill was first passed – on May 4 – that would be two months.”
- Whether the 72-hour approval window for an insurer is reasonable. “We’ve all had our issues with insurance companies,” Eagles said. The problem is that patients might not know within the 12-week window whether their insurer would cover the cost of an abortion.
What next?
The lawyers now will scatter, draft their opinions, review their schedules and report back to Eagles. And although she has not made a final decision, she has to be considering all the conflicts in the timetable of implementation, veto and fairness.
There is a high bar to consider a TRO, Boyle said, and he argued that such a step would be extraordinary.
“Rule 52 determines when I can grant a TRO and when I can decline a TRO,” Eagles said, adding that the injunction she has been asked to sign is “not good enough. Even if I’m going to sign a TRO, I wouldn’t sign that.”
