Appeals court strikes down North Carolina law banning abortions after 20 weeks

Law not based on NRLC model

By Dave Andrusko

A three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, today unanimously upheld a 2019 lower-court decision striking down a North Carolina abortion law first passed in 1973 after the Roe v. Wade decision was handed down.

On March 25, 2019, U.S. District Judge William Osteen concluded North Carolina’s law that banned abortions performed after the 20th week was unconstitutional. Although the law had never been enforced in over four decades, the appeals court panel echoed Judge Osteen’s conclusion that “In light of the 2016 amendment and their vigorous defense of the ban on constitutional grounds, Defendants’ [the state of North Carolina] disavowals provide little assurance to providers who would offer abortions after the twenty-week point of a pregnancy but for the ban.”

Beginning in 2010, National Right to Life affiliates began passing the Pain-Capable Unborn Child Protection Act based on model legislation provided by NRLC. These laws protect unborn babies from abortion once the little one is capable of experiencing pain. 

The North Carolina 20-week bill was not based on National Right to Life’s model Pain-Capable Unborn Child Protection Act and made no mention of the baby’s capability to feel pain at 20 weeks.

According to the pro-abortion Center for Reproductive Rights, “The case, Bryant et al. v. Woodall et al., was filed in the U.S. District Court for the Middle District of North Carolina 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 various abortion providers in the state and their patients seeking abortion.”

The 15-page opinion, written by Circuit Judge Diana Gribbon Motz noted early that the state did

“not defend the constitutionality of these provisions on appeal. Rather, the State’s sole contention is that the [abortion] Providers do not have standing to bring this suit because they do not face a credible threat of prosecution for violation of the challenged provisions. Like the district court, we disagree. Accordingly, we affirm the judgment of the district court.”

To reach this conclusion, the panel did not confine its findings to what has taken place in North Carolina: “The North Carolina legislature’s recent revisions to its statutory scheme suggest that North Carolina has a renewed interest in regulating abortion.”

Rather to add weight to its conclusion that there is a credible threat that abortionists in North Carolina would be prosecuted if they violated the law, Judge Motz, joined by Judge Albert Diaz and Judge Julius N. Richardson,  cited pro-life actions in other states. 

Abortion access remains a subject of lively debate in this country: two other states presently ban abortions after twenty weeks; more than a dozen states ban abortion at earlier dates; and nearly two dozen more states ban abortion at a later, but previability, date. 

Theoretically, the state could appeal the decision to the Supreme Court. However, “North Carolina’s Department of Justice is led by Attorney General Josh Stein, a Democrat and abortion-rights supporter,” Gary D. Robertson reported for the Associated Press. “Stein recused himself from the appeal because of his position on abortion.”

“Although the 4th Circuit Court of Appeals struck down our law banning abortions after 20 weeks, this ruling will not deter North Carolina Right to Life from continuing to seek passage of laws defending life,” Dr. Bill Pincus, President of North Carolina Right to Life, told NRL News Today. “Sadly, beginning in 1973 with the passage of Roe v. Wade, babies were no longer protected within their mother’s womb, yet that same year we passed the Endangered Species Act protecting animals on the verge of extinction.”

Dr. Pincus concluded, “North Carolina Right to Life will continue to fight for the dignity of all human beings from the moment of conception until natural death.”