Legal challenges put North Carolina abortion law in flux

Rachel Crumpler

More than a year after the North Carolina General Assembly passed Senate Bill 20, adding new abortion restrictions in a late-night vote overriding a veto by Gov. Roy Cooper, the state’s right-to-abortion law remains in limbo as it remains embroiled in two lawsuits challenging some of the requirements lawmakers implemented.

A federal judge ruled June 3 in the first lawsuit, loosening restrictions on how abortion pills can be provided in North Carolina. The same judge will soon decide the fate of two other provisions at stake in the second lawsuit.

U.S. District Judge Katherine Eagles in Greensboro has ruled to strike down some of North Carolina’s rules governing the dispensing of medical abortions. She found that the state’s new regulations go beyond those of the U.S. Food and Drug Administration. In a written opinion in April, she explained her belief that state lawmakers cannot subvert the federal agency’s regulatory authority by mandating that patients only obtain medical abortions directly from a doctor. The FDA has expressly determined that this requirement is not necessary for safe use.

Midwives, nurse practitioners and physician assistants will now be able to prescribe mifepristone and perform medication abortions, opening up a new pool of abortion care providers in the state. These advanced clinicians and physicians can also prescribe medication abortions via telehealth, allowing patients to take the mifepristone at home.

Eagles also repealed a requirement imposed by the North Carolina Legislature that patients receiving medication abortions schedule an additional in-person follow-up appointment, which meant three appointments for North Carolina patients.

“North Carolina politicians cannot interfere with the FDA’s authority to impose medically unnecessary restrictions on medication abortion care,” Amy Bryant, a Chapel Hill obstetrician-gynecologist and lead plaintiff in the lawsuit, said in a statement after the ruling.

The Eagles ruling expands abortion provision and access options in North Carolina that have been available in Virginia and other states for years.

Going forward, it is up to abortion providers and clinics to take the initiative in introducing new options that may increase access to abortion care.

“We’re looking at ways that this new law change can help our clinics develop care plans more quickly and efficiently,” said Kara Hales, executive director of A Preferred Women’s Health Center, which runs two abortion clinics in North Carolina.

Hales said she is cautiously optimistic that the state’s changes to access to medication abortions could help expand badly needed capacity to meet the demand of North Carolinians seeking treatment and an influx of patients from other Southern states.

“There’s a lot of potential and opportunity to expand access, but equally, you have to build support around it to really see change,” Hales said. “It’s going to be interesting over the next few months to see this really take hold.”

Expanding Access

Jenny Black, president and CEO of Planned Parenthood South Atlantic, said in a statement that the ruling is “a victory for thousands of patients across our state, especially in rural areas, who have been denied full access to medication abortion.”

Abortion opponents denounced the ruling.

“This decision puts women’s health and safety at risk and enables the abortion industry to expedite dangerous chemical abortions and maximize profits,” said Tami Fitzgerald, executive director of the NC Values ​​Coalition. “At-home abortions leave women and girls alone at home, without the assistance of a doctor, to give birth to stillborn babies, often well past the 10-week deadline recommended by the FDA.”

Medication abortions using the two-drug combination of mifepristone and misoprostol are the primary way people obtain abortions nationwide. In North Carolina, medication abortions (commonly known as medication abortions) accounted for about 70% of residents’ total abortions, with 19,967 medication abortions performed in 2022, according to the most recent state data.

Black said Planned Parenthood South Atlantic will take immediate action to expand access to medication abortions at its North Carolina medical centers through the use of telehealth and advanced practice clinicians, with care already being provided this way at its Virginia clinics.

Katherine Faris, chief medical officer for Planned Parenthood South Atlantic, previously told NC Health News that telehealth serves as a key point of access to abortion care in Virginia. Faris said telehealth is a preferred option for patients because it can be done on their own schedule, such as during their lunch break.

“They answer all their questions, they get counseling, they go through a consent process, and then the medication is mailed to them,” Faris explained. “Then the next day, they can take it as soon as they get off work, so they literally don’t have to take an hour off work. They don’t have to take a minute off childcare. They don’t have to pay for gas. They don’t have to spend time traveling. They don’t have to borrow someone’s car. They get the care they need right where they are.”

North Carolinians will have more options available to them that will become increasingly popular.DobbsBut it won’t happen overnight.

Planned Parenthood has a model for implementing telehealth at its Virginia clinics, but adoption at other abortion clinics in the state may be delayed. Hales, who oversees two Preferred Women’s Choice Health Center clinics in North Carolina, told NC Health News that telehealth is uncharted territory for the clinic. It’s not an option they can implement right away, but it’s something they plan to start looking into.

“It’s very exciting, but it’s definitely stressful navigating changes in the law and coming up with a plan that’s actually achievable and effective,” Hales said.

Hales said it will take time for the clinic to tap into the new pool of advanced clinicians, such as nurse practitioners and physician assistants, who can prescribe the abortion pill. The clinic has only worked with doctors up until now, she said, because under North Carolina’s old law, doctors were the only ones who could legally provide care. Hales said she’s already reached out to other states that have used these clinicians for years to provide abortion care to learn about their workflows and experiences in order to harness their potential at her clinic.

Beverly Gray, an obstetrician-gynecologist and abortion provider at Duke University, said abortion doctors in North Carolina are stretched thin trying to meet demand and sees midwives, physician assistants and nurse practitioners helping to expand capacity. Duke has senior clinicians who have already expressed an interest in providing abortions and have the skills and knowledge to do so, Gray said.

Eagles removed some restrictions on how people can access abortions, but left in place state requirements for a pre-abortion in-person appointment, ultrasound, blood tests and a state-mandated 72-hour counseling session — requirements he explained were left in place because the FDA had not specifically considered them.

Unresolved Provisions

Senate Bill 20 could be subject to further changes. Judge Eagles is scheduled to rule on two other provisions of Senate Bill 20 that were challenged in a lawsuit by Planned Parenthood South Atlantic and Gray, a Duke University obstetrician-gynecologist. Both restrictions have been blocked from going into effect since September, when Judge Eagles issued a preliminary injunction.

The plaintiffs want the restrictions blocked permanently, but Republican legislative leaders who intervened in the lawsuit to defend the law want the restrictions to go into effect.

The first provision at issue requires that abortions performed after the 12th week of pregnancy under state exceptions (in cases of rape, incest, or life-threatening fetal abnormalities) must be performed in a hospital. Plaintiffs argue that this provision imposes unnecessary burdens on women seeking abortions later in their pregnancy and does nothing to make the care safer. Instead, it makes hospital care more costly and time-consuming for patients.

Gray, who provides abortion care in a hospital, said the difference in safety of care isn’t determined by the setting, but by the skill and training of the care provider, adding that many hospitals in North Carolina don’t even have the staff needed to provide care in-house.

But lawmakers trying to intervene in the case argue it’s a reasonable safety requirement and that some women could be helped. They cited Planned Parenthood data that showed 34 patients were transferred to hospitals for treatment between 2020 and 2023. But Planned Parenthood stressed that these cases were a tiny fraction of the more than 43,000 abortions performed in North Carolina during the same period, and that all were released from hospitals in stable condition.

The second provision at issue requires that a doctor document the presence of a pregnancy in the uterus before prescribing an abortion pill. The plaintiffs argued that this requirement was unconstitutionally vague, a notion rejected by the interveners.

Judge Eagles held a summary judgment hearing in U.S. District Court in Greensboro on June 5 to determine whether the case should go to trial. After hearing arguments from both sides for an hour and a half, she indicated that a bench trial, scheduled to begin July 22, would not be necessary and that she would instead rule on summary judgment, which allows a judge to rule without a formal trial.

Abortion providers say they are burdened by an ever-changing legal environment as they constantly adjust their services to comply with state laws and meet patients’ needs.

Hales said she knows it’s best not to plan too far ahead because she doesn’t know what’s going to happen.

“My priority is to be able to adapt as quickly and as slowly as possible,” Hales said. “I’m trying to be very flexible and adaptable to the situation we find ourselves in at this moment.”