How long will North Carolina remain an abortion ‘safe haven’?

Featured photo: Dozens of people gathered to express their rage after the United States Supreme Court overturned Roe V. Wade at the Greensboro rally for reproductive rights in Greensboro N.C., on June 24, 2022. (photo by Juliet Coen)

This story was originally published by Rachel Crumpler of North Carolina Health News on Aug. 8, 2022

It’s been seven weeks since the Supreme Court’s decision to overturn Roe v. Wade eliminated the constitutional right to abortion. Abortion regulation is now in the hands of states, and at least for now, no new restrictions on abortion have been imposed in North Carolina.  

“Nothing changed in our laws when the Dobbs decision came down,” Tara Romano, executive director of Pro-Choice North Carolina, said Thursday during a virtual reproductive rights issue forum hosted by People’s Alliance. “We didn’t have a trigger ban in place. We did not have an old law on the books. And now, in North Carolina, that means we’re currently a state where people come to access care.” 

It’s a different situation than much of the South. Surrounded by states that have mostly taken action to either ban or severely restrict abortion, North Carolina still legally allows the procedure until fetal viability, which typically falls between 24 and 26 weeks of pregnancy.

This has made the state — and its 14 abortion clinics located in nine different counties — an important abortion access point in the Southeast. 

In 2020, 31,850 abortions were obtained in North Carolina, according to Guttmacher Institute, a national organization that tracks reproductive rights issues and legislation. A majority of these abortions were for people living in North Carolina, amounting to a state rate of 15.3 abortions per 1,000 women between the ages of 15 and 44.

Meanwhile, people are already crossing state lines seeking abortions in North Carolina. Molly Rivera, Planned Parenthood South Atlantic’s communications director, said in an email that in the first two weeks of July, more than a third of the organization’s appointments for abortion care in North Carolina were for out-of-state patients — a rate that is expected to continue to skyrocket. 

The state’s other abortion providers are experiencing a similar influx of out-of-state patients.

While North Carolina is currently an abortion safe haven for many, it may not stay that way. Continued abortion access in North Carolina hinges on the outcomes of this year’s fall elections. 

“An abortion ban bill is coming if we do not hold the House and the state Senate to fight off a supermajority,” state Sen. Natalie Murdock (D-Durham) said Thursday at the People’s Alliance forum. “Abortion rights will come down to five seats: three seats in the House and two seats in the state Senate. 

“That is our path to protecting abortion care here in North Carolina this fall.” 

Republicans eye greater restrictions

Republicans, which hold majorities in both chambers of the General Assembly, have expressed a desire to pass more abortion restrictions but they have yet to do so because Democratic Governor Roy Cooper would use his veto power to block such restrictions. 

What forms future abortion bills may take will likely depend on whether Republicans gain a supermajority, which they lost in 2018, this November. A supermajority would allow Republicans to override vetoes from Cooper without any votes from Democrats, paving the way for further state restrictions on abortion.

North Carolinians can “expect pro-life protections to be a top priority” when legislators return to their normal session in January, said House Speaker Tim Moore (R-Kings Mountain) in a statement on June 24, the day of the Supreme Court ruling.

State Senate leader Phil Berger (R-Eden) similarly told reporters on June 30 that there will be time in January for the General Assembly to make a decision about “what state law ought to be going forward or whether or not there should be some changes to it.” 

2020 NC Resident Abortion Statistics from the State Center for Health Statistics

• 25,058 abortions were provided to NC residents (98.5 percent obtained in-state).
• 56.6 percent of abortion seekers were 20 to 29 years old.
• 49.3 percent of abortion seekers were African American, 27.9 percent were white and 13.1 percent Hispanic.
• 58.7 percent of abortion seekers had 13+ years of education.
• Two-thirds of abortion seekers were already parents to one or more children.
• A total of 48 NC residents obtained abortions took place after 21 weeks. Thirty of those procedures were performed in-state and 18 took place out of state.

In July, Berger told WRAL his views fall “somewhere between the extremes” and that he supports exceptions for rape and incest. 

“There should be a period post-conception where the mother should have some autonomy in terms of what takes place but I also believe that, at some point, society and the law should have a role in protecting the life of the fetus,” Berger said on WRAL’s July 9 NC Capitol Wrap podcast.

“Now, where that point is, that’s something we’re going to have to have some conversation about,” he said. 

Berger and Moore have both said more discussions need to occur in the Republican caucuses and with constituents to determine what a bill may look like.

While new legislation won’t be considered until next year, for now, Moore and Berger are working to get the state’s 20-week abortion ban, originally written in 1973, reinstated. In late June, the two first called on Attorney General Josh Stein, a Democrat and abortion rights supporter, to take “all necessary legal action” to lift the injunction currently barring full enforcement of the state law.

In 2019, U.S. District Judge William Osteen Jr. blocked enforcement of North Carolina’s 20-week abortion ban because he said it violated precedents set by Roe v. Wade and an associated 1992 ruling. Now, with those cases overturned by the Supreme Court, Osteen is reconsidering his ruling. 

Stein released a statement on July 21 stating that his office would not ask the federal judge to reinstate the state’s 20-week ban on abortion. Stein said he refused to “take action that would restrict women’s ability to make their own reproductive health care decisions.” Stein has also recused himself from the case. 

Outside attorneys for Moore and Berger have asked Osteen to vacate his 2019 ruling, contending there is no legal basis for the injunction that halted enforcement of the law.

“North Carolina’s abortion statutes are undeniably lawful under Dobbs, and there is no longer any basis for an injunction to shackle the state from pursuing its legitimate interests,” Berger and Moore wrote in their brief filed July 27.

Osteen could reinstate the 20-week ban in North Carolina without lawmaker involvement. However, few abortions in the state occur after 20 weeks. In 2020, there were 30 abortions at 21 weeks or later performed in the state, comprising 0.1 percent of total abortions in the state.

Democratic support for abortion rights

Cooper and Attorney General Josh Stein, the state’s leading Democrats, have repeatedly affirmed their commitment to protecting abortion rights in North Carolina.

Three days after the Dobbs decision, Stein along with a national coalition of 22 attorneys general asserted that abortion remains safe and legal in places across the country and that they will work to keep it that way. 

“Abortion care is healthcare. Period. We stand together, as our states’ chief law officers, to proudly say that we will not back down in the fight to protect the rights of pregnant people in our states and across the country,” read the coalition’s joint statement.

Stein has continued to hold this position. “As Attorney General, I will do everything in my power to protect women’s right to reproductive care because it’s the right thing to do,” he said during a press conference last week on abortion access.

Abortion is legal but not easily accessible in North Carolina

• 14 abortion clinics serve a state population of 10.4 million plus out-of-state patients.
• 91 North Carolina counties do not have an abortion provider, making access more challenging for abortion seekers in rural parts of the state since the clinics are concentrated in nine urban counties.
• North Carolina is one of only a few states that require patients to wait 72 hours after state-mandated counseling (not required to be in-person) to obtain an abortion. 
• Medication abortion must be provided in person, making it less accessible than in other states.
• State Medicaid coverage of abortion care is banned except in very limited circumstances, requiring greater reliance on financial aid from abortion funds like the Carolina Abortion Fund.

*Information from Guttmacher Institute, a national organization that tracks reproductive rights issues and legislation. 

On July 6, Cooper signed an executive order to help protect women’s access to reproductive health care in North Carolina. The order includes provisions shielding out-of-state abortion patients from extradition and prohibiting state agencies under his control from cooperating in other states’ prosecutions of anyone who travels to obtain or provide reproductive health care that is legal in North Carolina.

Democratic governors in other states such as Colorado, Maine and Rhode Island signed similar executive orders to protect abortion rights in their states.

Abortion is on the ballot this fall

With abortion rights now in the hands of states, legislators will determine access to care. This is playing out across the country. 

On Friday, Indiana became the first state post-Roe to pass a law banning most abortions. This will dramatically shift the state’s current rules, which allow abortions up to 20 weeks after fertilization. 

Sen. Murdock called abortion the “issue of our time” during the People’s Alliance forum held last week and acknowledged it would be a key issue for voters this fall, as seen in Kansas. 

Last week, Kansas voters decisively rejected a proposed constitutional amendment that would have said there was no right to an abortion in the state. The vote marked the first time Americans weighed in on abortion rights after the overturn of Roe v. Wade.

“We know that the right to abortion care in North Carolina is on the ballot this November and every election to come thereafter,” Stein said during a press conference last week.

This article first appeared on North Carolina Health News and is republished here under a Creative Commons license. North Carolina Health News is an independent, non-partisan, not-for-profit, statewide news organization dedicated to covering all things health care in North Carolina. Visit NCHN at northcarolinahealthnews.org.