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Federal judge blocks one section of new NC abortion law, allows remainder to stand
Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.
U.S. District Judge Catherine Eagles has issued a temporary restraining order blocking one section of North Carolina's new abortion law. Other than the section dealing with abortion drugs and "intrauterine" pregnancy, the rest of the law can move forward.
Eagles issued her order Friday afternoon, less than 12 hours before the new law was scheduled to take effect. The order will remain in place for two weeks.
The judge rejected requests from Planned Parenthood and a Duke Health doctor, supported by N.C. Attorney General Josh Stein, to block other new abortion restrictions. Eagles cited the impact of amendments Gov. Roy Cooper signed into law Thursday. She also noted additional stipulations legislative leaders agreed to make Thursday.
The one section targeted by Eagles' order involved the new law's "intrauterine location and documentation provision." Supporters and critics of the law had addressed the issue during a hearing Wednesday in Eagles' Greensboro courtroom.
"As originally enacted, the Act provided that a 'physician prescribing, administering, or dispensing an abortion-inducing drug' shall '[d]ocument in the woman's medical chart the ... intrauterine location of the pregnancy,'" Eagles wrote. "The amendments modify this requirement. The law now provides that a 'physician prescribing, administering, or dispensing an abortion-inducing drug' shall '[d]ocument in the woman's medical chart the ... existence of an intrauterine pregnancy.'"
"Failing to comply with the intrauterine documentation requirement may carry the possibility of criminal penalties," the judge added. "If the failure to so document the existence of an intrauterine pregnancy makes the medical abortion unlawful, as the intervenors appeared to contend at the hearing, then the physician's actions are not excepted from the fetal homicide statute. ... This warrants a strict standard of review for vagueness."
"The plaintiffs are likely to succeed on their claim that the intrauterine documentation requirement as amended is unconstitutionally vague," Eagles wrote. "If the pregnancy is in early stages and the physician cannot document the existence of an intrauterine pregnancy, then the physician cannot comply with this requirement. ... At the least, the Act as amended is ambiguous as to whether a provider who cannot comply with the documentation requirement because it is impossible is prohibited from proceeding with the medical abortion early in pregnancy."
"Irreparable injury will result to the plaintiffs if a restraining order is not granted before the Act goes into effect tomorrow," Eagles wrote.
The judge rejected requests to block any other part of the amended law.
The Planned Parenthood suit challenges a provision requiring hospitalization for surgical abortions performed after 12 weeks of pregnancy. Eagles agreed with parties in the case that the challenged provision takes effect on Oct. 1. "Therefore, an immediate temporary restraining order is unnecessary," Eagles wrote. "The plaintiffs' challenges to the hospitalization requirement can be heard after full briefing on the motion for a preliminary injunction."
Eagles agreed with plaintiffs that a ban on advising women about out-of-state abortions would violate the First Amendment. But she cited amended language and Thursday's stipulation that nothing in the law would "impose civil, criminal, or professional liability on an individual who advises, procures, causes, or otherwise assists someone in obtaining a lawful out-of-state abortion."
"The Court agrees with this construction," Eagles wrote. "So construed, the ambiguities and First Amendment issues raised by the plaintiffs are unlikely to rise to an unconstitutional level and a temporary restraining order is not necessary at this stage."
The judge explained that "many of the inconsistencies and ambiguities identified by the plaintiffs in the original Act have been resolved by the amendments" Cooper signed into law.
"The amendments are likely to moot the plaintiffs' vagueness challenges to the provisions in the original Act directed to these matters," Eagles wrote. "Because the plaintiffs are no longer likely to be successful on the claims based on the original language of the Act, the motion for a temporary restraining order as to these provisions will be denied."
Eagles plans to issue another order next week scheduling additional briefing in the case. Supporters and critics of the law will have more opportunities to argue for and against a preliminary injunction.
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U.S. District Judge Catherine Eagles has issued a temporary restraining order blocking one section of North Carolina's new abortion law. Other than the section dealing with abortion drugs and "intrauterine" pregnancy, the rest of the law can move forward.
Eagles issued her order Friday afternoon, less than 12 hours before the new law was scheduled to take effect. The order will remain in place for two weeks.
The judge rejected requests from Planned Parenthood and a Duke Health doctor, supported by N.C. Attorney General Josh Stein, to block other new abortion restrictions. Eagles cited the impact of amendments Gov. Roy Cooper signed into law Thursday. She also noted additional stipulations legislative leaders agreed to make Thursday.
The one section targeted by Eagles' order involved the new law's "intrauterine location and documentation provision." Supporters and critics of the law had addressed the issue during a hearing Wednesday in Eagles' Greensboro courtroom.
"As originally enacted, the Act provided that a 'physician prescribing, administering, or dispensing an abortion-inducing drug' shall '[d]ocument in the woman's medical chart the ... intrauterine location of the pregnancy,'" Eagles wrote. "The amendments modify this requirement. The law now provides that a 'physician prescribing, administering, or dispensing an abortion-inducing drug' shall '[d]ocument in the woman's medical chart the ... existence of an intrauterine pregnancy.'"
"Failing to comply with the intrauterine documentation requirement may carry the possibility of criminal penalties," the judge added. "If the failure to so document the existence of an intrauterine pregnancy makes the medical abortion unlawful, as the intervenors appeared to contend at the hearing, then the physician's actions are not excepted from the fetal homicide statute. ... This warrants a strict standard of review for vagueness."
"The plaintiffs are likely to succeed on their claim that the intrauterine documentation requirement as amended is unconstitutionally vague," Eagles wrote. "If the pregnancy is in early stages and the physician cannot document the existence of an intrauterine pregnancy, then the physician cannot comply with this requirement. ... At the least, the Act as amended is ambiguous as to whether a provider who cannot comply with the documentation requirement because it is impossible is prohibited from proceeding with the medical abortion early in pregnancy."
"Irreparable injury will result to the plaintiffs if a restraining order is not granted before the Act goes into effect tomorrow," Eagles wrote.
The judge rejected requests to block any other part of the amended law.
The Planned Parenthood suit challenges a provision requiring hospitalization for surgical abortions performed after 12 weeks of pregnancy. Eagles agreed with parties in the case that the challenged provision takes effect on Oct. 1. "Therefore, an immediate temporary restraining order is unnecessary," Eagles wrote. "The plaintiffs' challenges to the hospitalization requirement can be heard after full briefing on the motion for a preliminary injunction."
Eagles agreed with plaintiffs that a ban on advising women about out-of-state abortions would violate the First Amendment. But she cited amended language and Thursday's stipulation that nothing in the law would "impose civil, criminal, or professional liability on an individual who advises, procures, causes, or otherwise assists someone in obtaining a lawful out-of-state abortion."
"The Court agrees with this construction," Eagles wrote. "So construed, the ambiguities and First Amendment issues raised by the plaintiffs are unlikely to rise to an unconstitutional level and a temporary restraining order is not necessary at this stage."
The judge explained that "many of the inconsistencies and ambiguities identified by the plaintiffs in the original Act have been resolved by the amendments" Cooper signed into law.
- It is not fetal homicide to perform a lawful abortion under the Act;
- Providers are not required to verify that the gestational age is less than 70 days for a medical abortion to be lawful;
- There is a medical emergency exception to the 72-hour mandate, and the 72 hours do not restart if the name of the physician who will perform the abortion is not known or changes;
- Providers are not required to inform the patient whether insurance will cover the abortion; and
- Providers are not required to file complete reports for minors within three days.
"The amendments are likely to moot the plaintiffs' vagueness challenges to the provisions in the original Act directed to these matters," Eagles wrote. "Because the plaintiffs are no longer likely to be successful on the claims based on the original language of the Act, the motion for a temporary restraining order as to these provisions will be denied."
Eagles plans to issue another order next week scheduling additional briefing in the case. Supporters and critics of the law will have more opportunities to argue for and against a preliminary injunction.
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