A Memorandum for Carolina Jews for Justice — May 25, 2022 

On May 2, 2022, Politico published a leaked draft of an opinion in Dobbs v. Jackson Women’s Health Organization, Case No. 19-1392, now pending in the United States Supreme Court. The draft is authored by Justice Samuel Alito and apparently represents the proposed decision by a majority of the Court to overrule both Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U. S. 833 (1992), the seminal cases establishing and clarifying the constitutional right of reproductive choice. The draft, dated February 10 of this year, does not reveal who besides Justice Alito would join in the majority opinion or who would dissent, but the draft’s authenticity has been confirmed by Chief Justice Roberts. According to Politico, a confidential source “familiar with the court’s deliberations” says that Justices Thomas, Gorsuch, Kavanaugh, and Barrett voted with Justice Alito in the Court’s initial conference after hearing oral arguments in December. 

If the draft becomes the decision of the Court, what will its effect be in North Carolina? 

North Carolina is not among the 26 states, many of them in the South, that are expected immediately to attempt to legislate abortion bans, according to the Guttmacher Institute. Some of those states have so-called “trigger bans,” meaning that those legislatures have anticipated the end of Roe and have already enacted laws that would ban abortion if Roe were overturned. Eleven states (including our neighboring states of Georgia, South Carolina, and Tennessee) ban abortions after the sixth week of pregnancy — before many people realize they are pregnant. In four states (including Tennessee), the state constitution bans abortion. 

North Carolina began criminalizing abortion in 1881. N.C. Gen. Stat. § 14-44 makes it a felony for any person to administer to any woman, “either pregnant or quick with child,” any drug or instrument “with intent thereby to destroy such child,” or to “advise or procure” any such woman to do that. N.C. Gen. Stat. § 14-45 prohibits using drugs or instruments to produce a miscarriage or to injure the woman. Those statutes remain on the books. 

In 1967 the legislature enacted an exception to the abortion ban to permit abortions performed in the case of a medical emergency. Then following Roe, the legislature passed N.C. Gen. Stat. § 14-45.1, entitled “When Abortion not Unlawful,” creating another exception to the abortion ban to permit abortions before the twentieth week of pregnancy. 

In 2015, the legislature amended both the twenty-week exception and the medical emergency exception to restrict the type of doctors permitted to perform abortions to “qualified physicians,” as defined in the amended statute, and to narrow substantially the definition of a “medical emergency.” A pregnancy that gravely impairs the woman’s health is no longer enough under the amendments; abortion is permitted only where necessary “to avert death or for which a delay will create serious risk of substantial and irreversible physical impairment of a major bodily function, not including any psychological or emotional conditions.” (Emphasis added.) The 2015 amendments also extend from 24 to 72 hours the waiting period one must observe before obtaining an abortion, and they further include new requirements that the state annually inspect abortion clinics and that abortion providers record and report to the state certain information, including fetal measurements and ultrasound images. 

In 2016, several physicians who perform abortions sued, challenging all of these statutes as unconstitutional. A federal district court found that the plaintiff physicians had standing to challenge the state statutes and held that N.C. Gen. Stat. § 14-45.1(a) (the post 20-week ban) was unconstitutional under Roe and Casey because it bans abortions after a specific number of weeks rather than after viability (the standard after Casey).1 The court entered an injunction against the enforcement of that statute “only to the extent that the statute prohibits any pre-viability abortions.” However, the court declined to enjoin §§ 14-44, 14-45, and 14-45.1(b), because to do so, in its opinion, “would have the effect of legalizing abortion up to the point of birth.”2 

On appeal to the U.S. Court of Appeals for the Fourth Circuit, the State conceded the unconstitutionality of the statutes under Roe and Casey and focused entirely on the issue of whether the providers had standing to sue. The Fourth Circuit determined that the physicians had standing to challenge the unconstitutional statutes and affirmed the decision of the district court.3 Even though the Fourth Circuit did not itself address the issue of the constitutionality of the statutes (because that issue was not argued by the parties on appeal), by affirming the order of the district court it thereby affirmed its determination of unconstitutionality.4 

Thus the present status of abortion regulation in North Carolina is that under the rulings of the federal courts, pre-viability abortions are permitted. In addition, N.C. Gen. Stat. § 14-45.1(b) remains in effect under the district court’s decision, and so abortions later than 20 weeks may still be performed by a “qualified physician” as defined in that statute in case of a medical emergency (under the narrowed definition of a medical emergency under the 2015 amendments). 

What will happen if Roe and Casey are overturned, such that there is no longer a federal constitutional right to abortion? 

First, the federal court injunction against enforcement of the statute banning pre viability abortions remains in place. Thus even if Roe and Casey are overturned, the North Carolina statutes would not automatically be revived; a party having standing (such as the State of North Carolina, but possibly including a biological father) would have to seek to dissolve the injunction. If the North Carolina Attorney General declined to bring such a proceeding, perhaps legislators could intervene to do so, although that is not clear. 

Secondly, dissolving the injunction would simply mean that the existing statutes would again be valid (absent any new legislation that survives a veto by the Governor). That would mean that in North Carolina, abortions would be lawful during the first 20 weeks of pregnancy, and even thereafter in the case of a medical emergency. 

What about the so-called “Woman’s Right to Know Act,” N.C. Gen. Stat. §§ 90- 21.80-21.92, which was passed in 2011? In summary, that act required abortion providers to make certain information available to people seeking an abortion at least 24 hours in advance of the procedure; and, in a section referred to as the “speech-and-display requirements,” required providers to perform an ultrasound at least four hours in advance of the procedure, during which time the provider must make the images produced from the ultrasound visible to the patient and must describe to the patient the images seen on the ultrasound. Specifically, the statute required the physician or technician to give the patient “a simultaneous explanation of what the display is depicting, which shall include the presence, location, and dimensions of the unborn child within the uterus,” and “a medical description of the images, which shall include the dimensions of the embryo or fetus and the presence of external members and internal organs, if present and viewable.” The law was clearly intended to dissuade people from having abortions. 

The law was challenged as soon as it was passed, and in December 2011 a federal court held it unconstitutional as to its “speech-and-display” requirements.5 Significantly, however, the basis for the challenge was not that the law burdened a woman’s right to choose abortion under Roe and Casey, but rather that the law violated the First Amendment’s guarantee of free speech by dictating to physicians what they must say (the First Amendment generally includes the right to refuse to engage in speech compelled by the government). Said the court: 

It is undisputed that the Act compels content-based speech by providers; it requires providers to orally and visually convey specified material about the fetus to their patients. The message is compelled regardless of a patient’s individual circumstances or condition and regardless of the provider’s medical opinion. The message is required even when the provider does not want to deliver the message and even when the patients affirmatively do not wish to see it or hear it. It is further undisputed that this implicates the First Amendment rights of providers such as the Plaintiffs.6 

The opinion makes reference to the rights established in Roe and Casey, but it is clear that the determination of unconstitutionality is based on solid First Amendment grounds, not the Fourteenth Amendment’s right of privacy implicit in the Due Process Clause that was at issue in Roe and Casey. Thus even if the latter decisions are overruled, the speech-and-display provisions of the so-called “Woman’s Right to Know Act” would remain unconstitutional on First Amendment grounds. 

In summary, the demise of Roe and Casey will not immediately make abortion unlawful in North Carolina. As people committed to the right of reproductive choice, it is imperative that we retain a veto-proof General Assembly and an Attorney General who will not seek to dissolve the federal injunction affirming the right to pre-viability abortions. We may also expect to see people coming to North Carolina from our neighboring states of South Carolina, Georgia, and Tennessee to seek abortions and will need to plan how best to support them. 

1 Bryant v. Woodall, 363 F. Supp. 3d 611 (M.D.N.C. 2019). 

2 Id., 363 F. Supp. 3d at 631. 

3 Bryant v. Woodall, 1 F.4th 280 (4th Cir. 2021). 

4 In the introductory paragraph to its decision, the Fourth Circuit referred to all of the challenged statutes, including §§ 14-44, 14-45, and 14-45.1(b), in stating that the state officials “do not defend the constitutionality of these provisions on appeal.” 1 F.4th at 282. So the decision could arguably be construed as confirming the State’s position that all of the abortion statutes are unconstitutional, despite the lack of an express holding to that effect. 

5 Stuart v. Huff, 834 F. Supp. 2d 424 (2011)

6 Id., 834 F. Supp. 2d at 429.