Judge reinstates North Carolina’s 20 week abortion law

Osteen: None of the parties argue that the injunction remains legally enforceable, nor could they.

The L. Richardson Preyer Federal Building and Court House in Greensboro in shown in this photo from the Library of Congress.

RALEIGH — Late in the day on Thursday, Aug. 18, U.S. District Court for the Middle District of North Carolina Judge William Osteen reinstated North Carolina’s law restricting abortion beyond 20 weeks.

“The issue before this court is whether to lift its injunction preventing enforcement of three North Carolina statutes to the extent those statues prohibit pre-viability abortions,” Osteen writes in his 14-page ruling. “This court will vacate its injunction because it was based on Supreme Court precedent that has since been reversed.”

Following the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization which returned abortion law decision-making to the states, North Carolina’s top lawmakers House Speaker Tim Moore (R-Kings Mountain) and Senate Leader Phil Berger (R-Eden) asked Democratic Attorney General Josh Stein to lift the injunction, but he refused which forced the lawmakers to take legal action themselves.

Osteen’s decision lifts the injunction put into place in the 2019 decision in Bryant v. Woodall. That ruling said all women in North Carolina could get an abortion “beyond the 20-week deadline set forth in the statute, through the point of viability.”

In his ruling, Osteen writes that arguments by both plaintiffs and defendants “illustrate why this injunction must be dissolved and dismissed.”

“Defendants argue, referring to Dobbs, that “[l]ifting the injunction will likely worsen the public confusion that is inevitable from such a profound reversal in the law,” Osteen wrote. “Plaintiffs similarly argue that “the injunction preserves Plaintiffs’ ability to provide critical healthcare services” and “[l]ifting the injunction would create apprehension and uncertainty among providers about what kind of patient care they can legally provide in North Carolina.”

“This court disagrees,” Osteen responded. “Most notably, this injunction does not preserve Plaintiffs’ ability to provide services contrary to North Carolina law; under Dobbs, there is now no constitutional right to a pre-viability abortion, thus depriving the injunction of any constitutional basis from which to enjoin the challenged North Carolina laws regulating abortion. Contrary to the parties’ arguments, leaving the injunction in place wrongfully heightens confusion because to do so is misleading as to the effect of Dobbs.”

Osteen also wrote that “None of the parties argue that the injunction remains legally enforceable, nor could they. The injunction was entered under the authority of Roe and Casey; that precedent has been overruled by Dobbs.”

Legislative leaders issued statements shortly after the ruling.

“Today a federal judge ruled that the injunction on North Carolina’s 20-week abortion ban is “patently contrary to the rule of law as determined by the Supreme Court” and should be lifted,” Moore said in a statement. “I am encouraged that, although our attorney general has failed to do his duty, today we have a ruling that upholds the law.”

Berger also issued a statement that said in part “The U.S. Supreme Court’s decision in Dobbs clarifies that North Carolina’s long-standing regulation of abortion after 20 weeks of pregnancy complies with the U.S. Constitution and should be reinstated.”

Berger then took specific aim at Democratic Attorney General Josh Stein’s “political grandstanding” after refusing to lift the injunction.

“Despite recusing himself from the case, Stein continued to be the face of his office’s lackluster efforts to defend it,” Berger’s statement reads. “He used his recusal as an excuse to fundraise and campaign on the issue, including holding a press conference at the Department of Justice where he called on North Carolinians to vote for candidates that would block regulating abortions.”

“Democrats’ position on abortion can only be characterized as extreme,” said Berger. “Attorney General Stein’s political grandstanding has made one thing clear: He and his party want to allow abortion up to the moment of birth. That’s barbaric and out of touch with North Carolinians.”

Earlier in the day on the 18th, Stein had issued a press statement about actions he was taking to “protect women’s reproductive freedoms.”  Those actions were not related to North Carolina or the pending injunction case. Instead, Stein announced he had joined 20 other Democratic state attorneys general in filing support briefs in abortion-related lawsuits in Texas and Idaho.

In an emailed statement to North State Journal on Osteen’s ruling, Stein said “Women still have a legal right to an abortion in North Carolina under state law until 20 weeks. If people want that right to continue to exist, they have to elect legislators who share that view.”

In a statement, Democratic Governor Roy Cooper responded to the ruling by saying “Although I disagree with this ruling, the vast majority of patients will still be able to access reproductive health care in North Carolina, and I remain committed to protecting it.”

“The significant problem with this ruling is that it will criminalize important health care that’s needed in certain extraordinary circumstances,” Cooper said. “Abortion past 20 weeks in pregnancy is exceptionally rare and happens because of a devastating health emergency or diagnosis. Denying women necessary medical care in extreme and threatening situations, even if rare, is fundamentally wrong, and we cannot let politicians mislead people about the real world implications of this harmful law.”

Alliance for Defending Freedom (ADF), which had filed a friend-of-the-court brief on behalf of Moore and Berger, also issued a statement.

“North Carolina can now protect more lives and provide real support to more women facing unplanned pregnancies,” Senior Counsel and Director of ADF’s Center for Life Denise Harle said in a statement. “At 20 weeks, a baby can move and kick, feel pain, and even has her own unique fingerprints. We’re pleased the court swiftly restored justice to innocent, unborn children by allowing North Carolina’s pro-life law to be properly enforced.”

ADF describes itself as “an alliance-building, non-profit legal organization committed to protecting religious freedom, free speech, parental rights, and the sanctity of life.”

About A.P. Dillon 1206 Articles
A.P. Dillon is a North State Journal reporter located near Raleigh, North Carolina. Find her on Twitter: @APDillon_