Federal judge tosses NC abortion law

A federal judge in Greensboro ruled North Carolina's abortion law is unconstitutional - saying changes made in 2016 made the law unconstitutional if it wasn't already.

Since 1973, NC banned abortions after 20 weeks. And while Judge William L. Osteen, Jr. noted - nobody was ever prosecuted for violating this law, it's also pretty clear that it's impossible to determine whether anyone ever has violated it.

...this court recognizes that information or records that might prove the actual medical diagnosis in each such case are likely both not in Plaintiffs’ direct possession, (Elizabeth Deans Disc. Resps. (Doc. 53–3) at 6 (stating that abortion records belong to the medical center and may not be divulged for any purposes other than client treatment)), and subject to medical privacy laws that would prevent their disclosure into evidence.

Osteen was appointed to the bench by President George W. Bush, at the recommendation of Sen. Elizabeth Dole.

The original law included an exception for medical emergencies, but Osteen said the 2016 revision to this language made it unconstitutional:

Osteen said the amendment narrowed the universe of abortions that are permissible under the law.

He then outlines (and agrees with) the argument made by the abortion providers - that the law forbids a mother from aborting her baby after twenty weeks, if the baby is diagnosed in utero with a degenerative disease.

Or Downs Syndrome.

There was also a lot of debate about whether the state would enforce this newly-amended law.

I'm always amazed when government officials and politicians pass a law and then promise not to enforce it (like the Charlotte City Council did with it's bathroom ordinance that prompted the state's HB2 law).

Abortion providers were worried that the state would enforce the ban and start arresting doctors. So, they complied with the law.

But state officials promised there would be no enforcement.

Which all leads me to believe that the abortion industry enjoys virtual freedom to operate without oversight, despite the fact it's engaged in ending lives.

a statute that reasonably deters individuals from a constitutionally-protected sphere of individual freedoms, including the right to choose to have an abortion prior to viability, is susceptible to challenge due to such deterrence.
this court ultimately finds that the recent amendment to N.C. Gen. Stat. § 14-45.1, when viewed together with Plaintiffs’ apparent compliance and Defendants’ failure to fully disavow future enforcement of the ban, illustrate that the threat of prosecution under this statute is credible. Therefore, this court finds that Plaintiffs have standing to challenge N.C. Gen. Stat. § 14-45.1(a)

Judge Osteen ruled the NC law does not comply with the Supreme Court's precedent-setting Casey decision, which gives abortion doctors near total control in determining when "viability" begins. Again, without any oversight.

[Emphasis added]

Defendants and their amici mis-interpret Supreme Court precedent, which this court is bound to follow, as it relates to pre-viability abortions. The Supreme Court has indeed held that “the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 846 (1992) (plurality opinion). The Supreme Court has also clearly declared that, “[b]efore viability, the State’s interests are not strong enough to support a prohibition of abortion.” Id.; see also Gonzales v. Carhart, 550 U.S. 124, 146 (2007) (explaining the Casey holding and reaffirming that states may not prevent a woman from terminating her pregnancy prior to viability). In other words, ”[e]ven in the earliest stages of pregnancy, the State may enact rules and regulations designed to encourage [the mother]” to choose to continue her pregnancy if those regulations do not impose an undue burden; however, a state may not ban abortions at any point prior to viability. Casey, 505 U.S. at 872–74. These directives are neither complex nor contradictory: a state is never allowed to prohibit any swath of pre-viability abortions outright, no matter how strenuously it may believe that such a ban is in the best interests of its citizens or how minimal it may find the burden to women seeking an abortion.
The Supreme Court has recognized that, while viability is the point at which the state’s legitimate interest rises to a level that may support an outright ban (with appropriate health exceptions), viability does not occur at a fixed number of weeks after the pregnancy begins but rather is determined individually in each case by a doctor. See Roe, 410 U.S. at 160 (“Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.”) (footnote omitted); Casey, 505 U.S. at 860 (affirming Roe’s focus on viability but noting that the average point of viability had advanced significantly even in the twenty years since Roe was decided). Indeed, the Supreme Court has further stressed that “it is not the proper function of the legislature or the courts to place viability, which essentially is a medical concept, at a specific point in the gestation period.” Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 64 (1976); see also Colautti v. Franklin, 439 U.S. 379, 388-89 (1979) (“Because this point may differ with each pregnancy, neither the legislature nor the courts may proclaim one of the elements entering into the ascertainment of viability — be it weeks of gestation or fetal weight or any other single factor — as the determinant of when the State has a compelling interest.”). Because viability is the relevant guidepost under Supreme Court precedent, many states have chosen to proscribe abortion after viability rather than enacting a week-specific ban.

Let me re-state this part:

The Supreme Court has recognized that, while viability is the point at which the state’s legitimate interest rises to a level that may support an outright ban (with appropriate health exceptions), viability does not occur at a fixed number of weeks after the pregnancy begins but rather is determined individually in each case by a doctor.

This is how Kermit Gosnell was able to kill full-grown babies in late-term abortions.

And, as Judge Osteen noted:

It is not within this court’s mandate to opine on the wisdom of using viability as the pivotal point. The Supreme Court has made that decision. This court’s sole job is to apply the viability framework to the facts of this case.

And he added later:

the Supreme Court has clearly advised that a state legislature may never fix viability at a specific week but must instead leave this determination to doctors.

Judge Osteen ordered the General Assembly be given time to re-write the law.

Pete Kaliner

Pete Kaliner

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