Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.
Supporters and opponents of North Carolina's new abortion law will head back to federal court on Sept. 21 in Greensboro. U.S. District Judge Catherine Eagles has set that date for a hearing on a possible preliminary injunction blocking portions of the law.
Parties in the federal lawsuit, Planned Parenthood v. Stein, had recommended two earlier dates in September for a hearing. In an order Thursday, Eagles indicated she was unavailable on either suggested date.
Eagles' order also spelled out new filing deadlines for the abortion law's defenders and critics, starting with an amended complaint due from the law's opponents on July 17. The September hearing will not involve testimony from witnesses. "The motion for preliminary injunction will be decided based on the record, and the Court does not contemplate receiving live evidence,"
All parties in the case already have agreed Eagles' existing temporary restraining order against one section of the law could last longer than two weeks.
Eagles issued the TRO on June 30. She allowed most of the new law to take effect July 1. But she placed an initial two-week block on a section dealing with a documentation requirement linked to use of abortion drugs. Now that section will remain blocked until Eagles decides whether to grant a preliminary injunction.
N.C. Attorney General Josh Stein and state Health and Human Services Secretary Kody Kinsley are named defendants in the case, along with local district attorneys and leaders of the N.C. medical and nursing boards.
State Senate leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, are "intervenors"
in the case. Eagles issued an order Monday allowing legislative leaders to defend the law moving forward. Berger and Moore asked to intervene after learning that Stein would not defend the law in court.
When issuing the TRO, Eagles rejected requests from plaintiffs Planned Parenthood and a Duke Health doctor to block other new abortion restrictions. Eagles cited the impact of amendments Gov. Roy Cooper signed into law on June 29. She also noted additional stipulations legislative leaders agreed to make the same day.
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 Wednesday's hearing in Eagles' Greensboro courtroom.
"Failing to comply with the intrauterine documentation requirement may carry the possibility of criminal penalties,"
the judge wrote. "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."
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 the June 29 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,"
- 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.
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 ordered that all new briefs in the case must be submitted by Sept. 12, nine days before the preliminary injunction hearing.
"Expedited discovery is authorized and may begin now,"
the judge wrote. "Given the short time between now and the preliminary injunction hearing, full discovery needed for trial need not and should not be completed immediately; the Court relies on the parties to be restrained and reasonable about the amount of discovery to take place over the next two months."