Federal Court Affirms North Carolina 20-Week Abortion Ban Is Unconstitutional

With its decision, the Fourth Circuit joins many other courts across the country that have struck down pre-viability abortion bans.

Federal Court Affirms North Carolina 20-Week Abortion Ban Is Unconstitutional
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Since 1973, North Carolina law has banned abortion after 20 weeks with an exception for medical emergencies. Pictured: Duke University students attend a rally in D.C. to show their support for abortion rights in November 1989. (Duke Chronicle, Vol. 85 Issue 55)

The Fourth Circuit Court of Appeals upheld a lower court’s decision striking down a North Carolina law banning abortion after 20 weeks of pregnancy with only narrow exceptions for medical emergencies. The court rejected the state’s claim that abortion providers did not have standing to challenge the law.

“This ruling is a victory for all North Carolinians in line with decades of Supreme Court precedent,” said Genevieve Scott, senior staff attorney at the Center for Reproductive Rights. “Forcing someone to continue a pregnancy against their will is a violation of their basic humanity, their rights, and their freedom.”

The case, Bryant et al. v. Woodall et al., was filed in North Carolina federal court by the Center for Reproductive Rights, Planned Parenthood Federation of America, the American Civil Liberties Union (ACLU), and the ACLU of North Carolina on behalf of several abortion providers in the state and their patients seeking abortions.

Since 1973, North Carolina law has banned abortion after 20 weeks with an exception for medical emergencies, but the state had never prosecuted anyone under the law. Then, in 2015, the state significantly narrowed the medical emergency exception to medical emergencies that threaten a woman’s life or “create serious risk of substantial and irreversible physical impairment of a major bodily function, not including any psychological or emotional conditions.” The law barred abortion based on a “claim or diagnosis that the woman will engage in conduct which would result in” harm to herself, such as suicide.

The plaintiffs alleged that the North Carolina law prohibited some pre-viability abortions in violation of the 1992 case of Casey v. Planned Parenthood, which protects a woman’s right to access abortion before viability (around 25 or 26 weeks). The state said the plaintiffs had no standing because it has never enforced the law. The courts disagreed.

With this decision, the Fourth Circuit joins many other courts across the country that have struck down pre-viability abortion bans. This decision takes on particular importance because of the Supreme Court’s recent decision to review a Fifth Circuit Court of Appeals decision striking down Mississippi’s 15-week abortion ban.

The court’s decision to review the Mississippi ban surprised many because twice in the last five years the court has affirmed the constitutional right to abortion—in the 2016 Supreme Court case of Whole Women’s Health v. Hellerstedt and the 2019 Supreme Court case of June Medical Services v. Russo. But Trump’s appointment of three anti-abortion nominees to the Supreme Court has emboldened a surge in state-level restrictions on abortion.

Just this year, anti-abortion lawmakers across 47 states have introduced 561 abortion restrictions, including 165 abortion bans (as of June 14, 2021). A staggering 83 of those restrictions have been enacted across 16 states, including 10 bans. Advocates fear that the Supreme Court may now erode or reverse the constitutional right to abortion health care.

“This is an essential victory for reproductive freedom in North Carolina,” said Andrew Beck, senior staff attorney at the ACLU Reproductive Freedom Project. “Abortion is a right, and throughout pregnancy, a person’s health and well-being—not political agendas or interference—should guide important medical decisions. We are pleased to see the court protect that right today.”

“This decades-old abortion ban took away patients’ fundamental rights for far too long, and we applaud the court’s decision today to keep it from harming more people,” said Alexis McGill Johnson, president and CEO of Planned Parenthood Federation of America.

“Because of this decision, North Carolina is a haven where patients can access abortion even as politicians throughout the South pass dozens of restrictions attacking fundamental rights,” said Nancy Northup, president and CEO of the Center for Reproductive Rights. ”As the court held, ‘[t]he Providers have a right to insist that North Carolina comply with the Constitution—and so do their patients.’”

“Despite today’s decision, abortion is still inaccessible for millions across the country for no other reason than politicians’ hellbent efforts to put their political goals ahead of the well-being of their constituents,” said Johnson. “We’ll continue fighting cruel abortion restrictions like the one struck down today until every person can exercise their fundamental right to safe, legal abortion regardless of where they live or how much they make.”

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About

Carrie N. Baker, J.D., Ph.D., is the Sylvia Dlugasch Bauman professor in the Program for the Study of Women and Gender at Smith College. She is a contributing editor at Ms. magazine. You can contact Dr. Baker at [email protected] or follow her on Twitter @CarrieNBaker.