This post appears here courtesy of the Carolina Journal
. The author of this post is CJ Staff
North Carolina legislative leaders warned a federal judge this week that opponents of the state's new abortion law are trying to "circumvent"
the US Supreme Court's recent Dobbs decision. The judge will hold a Sept. 25 hearing in Greensboro to address the issue.
Planned Parenthood and Duke Health Dr. Beverly Gray seek a preliminary injunction blocking portions of the new law. Most of the law took effect July 1. It permits abortions through the first 12 weeks of pregnancy, then restricts most abortions after that cutoff point.
Parties on both sides of the dispute submitted briefs Tuesday for US District Judge Catherine Eagles.
"Plaintiffs' lawsuit is an overt attempt to circumvent the Supreme Court's decision in Dobbs v. Jackson Women's Health Org., by seeking to create new constitutional roadblocks to laws that protect women from unsafe abortion practices,"
wrote lawyers representing Senate Leader Phil Berger, R-Rockingham, and State House Speaker Tim Moore, R-Cleveland. "But the Supreme Court instructed that '[a] law regulating abortion ... is entitled to a "strong presumption of validity"' and 'must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests,' including 'the protection of maternal health and safety.' North Carolina's abortion laws easily satisfy this test."
Lawmakers defended a challenged documentation requirement for doctors administering abortion drugs.
"As the leading cause of maternal mortality in the first trimester, ectopic pregnancies must be identified and treated before they rupture,"
lawmakers' lawyers argued. "The North Carolina General Assembly addressed this danger by requiring doctors to document an intrauterine pregnancy (IUP) prior to giving women drugs that can mask the symptoms of a life-threatening rupture. The U.S. Food and Drug Administration (FDA) has also addressed this risk by including a warning on mifepristone's label that a prescriber must 'exclude [an ectopic pregnancy] before treatment.' Codifying FDA's warning into law is rational."
The legislators' brief also made the case for the new law's hospitalization requirement for abortions that take place after 12 weeks of pregnancy.
"The General Assembly also sought to provide safe conditions for women who seek abortions beyond the first trimester,"
according to the brief. "As Plaintiffs have conceded, women who have post-12-week surgical abortions may experience life-threatening complications that require hospitalization. What's more, Planned Parenthood South Atlantic (PPSAT) admits that it has transferred women from its facilities to hospitals due to complications from post-12-week surgical abortions that it could not treat at its facilities."
"Simply put, the North Carolina legislature had rational reasons to require IUP documentation prior to a chemical abortion and hospitalization for post-12-week surgical abortions. The Constitution affords the North Carolina General Assembly - not Plaintiffs - that choice,"
"The North Carolina General Assembly enacted straightforward, rational protections for women who seek certain types of abortions. And for Plaintiffs to ask the Court to grant their Motion for Preliminary Injunction is to ask the Court to impermissibly 'substitute [its] social and economic beliefs for the judgment of' these representatives,"
the brief concluded.
Planned Parenthood and Gray offered the judge a contrasting argument. "[T]he record remains clear: the Hospitalization and IUP Documentation Requirements are not rationally related to patients' health, and the IUP Documentation Requirement fails to give adequate notice of what it demands. The Requirements therefore violate the Fourteenth Amendment."
The plaintiffs' brief criticized lawmakers' expert witnesses. "These witnesses' opinions that abortion is unsafe, and that carrying a pregnancy to term and delivering a baby are safer than abortion, are not supported by credible evidence, and are contrary to every mainstream medical organization's conclusion."
Planned Parenthood labeled restrictions on abortion after 12 weeks "irrational." "Here, the overwhelming evidence of abortion's safety - both before and after the twelfth week of pregnancy - more than rebuts any presumption that the General Assembly acted rationally in requiring hospitalization for abortion, a politically stigmatized type of medical care, but not for less-stigmatized procedures."
The brief directly challenges the hospitalization requirement. "There is no medical reason to require that abortions be provided in hospitals when the need for hospital treatment is so extraordinarily rare, and rarer than for other outpatient procedures."
"Nor does a hospital setting improve patient safety,"
Planned Parenthood argued. "Research shows that second-trimester ... procedures can be both safer and more affordable in outpatient clinics than in hospitals. And by delaying survivors of rape or incest and patients with life-limiting anomalies, the Hospitalization Requirement forces these patients to obtain abortions later than they otherwise would, when the risk (although still very low) has increased. The Hospitalization Requirement therefore undermines patient safety."
Critics of the new law also target the IUP documentation requirement. "Plaintiffs argue that it is irrational to deny medication abortion to patients whose pregnancies are not yet visible by ultrasound and who are low risk for ectopic pregnancy,"
according to the brief. "Because these patients have been screened and deemed low risk, they are considered patients with a pregnancy of unknown location, not patients with a 'confirmed' or 'suspected' ectopic pregnancy - distinct diagnostic categories."
Planned Parenthood emphasized the impact of the 12-week threshold. "[B]anning medication abortion in the earliest weeks of pregnancy is logically incompatible with the Act's intent - that people obtain abortion as early in pregnancy as possible, and that abortion remain generally lawful through the twelfth week of pregnancy,"
according to the brief. "As both the published research and Plaintiffs' experts explain, there is no reason for the government to mandate that people wait to obtain a medication abortion until their pregnancy is visible by ultrasound, rather than allowing them to opt for a safe and effective medication abortion protocol with concurrent ectopic pregnancy screening."
Eagles will consider these and other arguments on Sept. 25. She issued a June 30 order blocking the IUP requirement while allowing the rest of the new law to take effect.
State Attorney General Josh Stein and Health and Human Services Secretary Kody Kinsley are named defendants in the case, along with local district attorneys and leaders of the NC medical and nursing boards.
Berger and Moore asked to intervene in the case after learning that Stein would not defend the abortion law in court. Eagles issued an order allowing legislative leaders to defend the law moving forward.
Eagles' upcoming 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,"
Eagles wrote on July 6.