WILMINGTON — Two provisions in North Carolina’s 12-week abortion law have been blocked in federal court, removing some restrictions on those seeking the procedure.
On Saturday, U.S. District Court Judge Catherine Eagles ruled in favor of Planned Parenthood South Atlantic and Beverly Gray MD, whose lawsuit challenged the state legislature’s attempt to block doctors from providing abortion medication in early stages of pregnancy.
The judge also ruled that survivors of sexual assault and patients with diagnoses of a “life-limiting anomaly” may continue to obtain abortion care in a clinic setting after 12 weeks of pregnancy and will not be forced to seek care in a hospital.
The law requires surgical abortions to be performed in a hospital, though the same procedures are permitted for miscarriage management in an outpatient clinic. Hospital procedures often cost more than in outpatient facilities, posing a financial barrier to those seeking legal reproductive care.
“We will always fight for every inch of ground so that as many people as possible can get the health care they need in North Carolina,” Planned Parenthood South Atlantic CEO and President Jenny Black said in a press release. “The court’s decision recognizes that abortion is health care and that there is no medical reason to deny even more patients access to this safe, compassionate, evidence-based care.
Eagles allowed several challenged portions of the law to stand days before its effective date, July 1. However, last week’s ruling dealt with an unresolved question: Can a physician prescribe medication even if an embryo isn’t detected by an ultrasound?
Aside from banning most abortions after 12 weeks, the law contains a convoluted reporting requirement that physicians must provide the location of an intrauterine pregnancy before administering an abortion. However, there are times where the location of an embryo cannot be seen at all on an ultrasound, but lab work indicates a pregnancy. This usually occurs early on, typically at five or six weeks.
Republican leaders claim Mifepristone — a pill used to terminate a pregnancy — should not be administered in these cases until an intrauterine pregnancy is confirmed in the name of patient safety.
Eagles blocked this provision in June, noting if doctors could not locate an embryo, they could not comply with the provision. She also ruled the plaintiffs are likely to prevail on their claim that it does not give fair notice on how to comply with the law.
It was unclear if the law should be interpreted to mean doctors are prohibited from providing the abortion pill to women whose embryo does not show on an ultrasound. This can happen if the woman is screened too early into her pregnancy, but also in the case of an ectopic pregnancy, where the embryo attaches itself outside the womb and, therefore, is not viable.
According to Molly Rivera, spokesperson for Planned Parenthood South Atlantic, there is a “spectrum” of ultrasound results in the early stages of pregnancy, specifically before eight weeks. When an embryo can be seen on an ultrasound and is located inside the uterus, or if the probable location is found, a doctor administers the abortion pill.
If the embryo is located on the ultrasound but has implanted outside the uterus, it’s an ectopic pregnancy. Mifepristone is not administered in this scenario, even when an embryo’s location cannot be seen, but a patient’s symptoms or lab work indicates a possible ectopic pregnancy. The patient is referred to emergency services to remove the tissue.
The gray area lies in between — when an embryo cannot be found, but there are no signs of an ectopic pregnancy.
“In those cases, our protocol dictates that it’s safe to then provide the medication abortion, which means we hand the patients a pill,” Rivera said. “And when we do that, we counsel the patient, just like we always do.”
The FDA maintains Mifepristone should not be taken for medical termination of an ectopic pregnancy.
While it doesn’t solve an ectopic pregnancy, Rivera explained Mifepristone does not further harm the patient. Women are also educated on the differences in symptoms, plus given contacts of emergency services, so they can effectively monitor their condition post-procedure.
Though only around 2% of pregnancies are ectopic, Eagles’ ruling removes one roadblock for patients navigating the new reproductive care landscape in North Carolina.
“If a patient comes in around five weeks pregnant, we can’t see [the embryo], they’ll have to come back, maybe wait like a week, maybe two weeks,” Rivera said. “The other logistical challenge here is we don’t provide abortions every day. Patients will also have to navigate, just like with any other doctor appointment, our schedule.”
The next available appointment for a medication abortion — surgical abortions must now be performed in a hospital — is nearly two weeks from now, on Oct. 11. The online scheduler shows 20-minute time slots are available only three or four days a week.
According to Rivera, one of the biggest hurdles in the wake of the 12-week ban has been the multiple-appointment stipulation. The law mandates two trips to the clinic, one for consultation and the other for procedure, along with a follow-up to be scheduled. The appointments must be done in-person, despite FDA clearance for telehealth administration of medication abortions.
“We’ve got patients traveling here from far away — they have to take off of work, find childcare, they often don’t have paid time off of work, so it translates into lost wages,” Rivera said. “And, so, and we hear a lot from patients, ‘Can’t I do this over the phone, you know, can’t I sign this paperwork online?’ And the answer has to be no.”
The multiple appointments also cut into the other services Planned Parenthood provides.
“Especially in places like New Hanover, [we] provide regular primary care,” Rivera said. “People come to us for their regular pelvic exam, birth control, STI testing and screening. You know, STI rates are on the rise in North Carolina. So people come to us for that and those services are essential, of course for the individual but also for public health. The more time we have to spend on medically unnecessary appointments, the less time we have available for essential services like that.”
Rivera said the Planned Parenthood clinics are just settling into the new normal; plus, they will not have to adapt to new regulations for clinic licenses.
When passed in June, the law granted the North Carolina Medical Care Commission the authority to repeal and draft new rules to obtain an abortion clinic license. This was to be done by Oct. 1; yet, no recommendations have materialized.
Rivera explained the provision in the law was not a mandate, but an option for the commission, made up of 17 healthcare professionals appointed by the governor.
“There’s been no indication that they are going to, for example, require abortion providers to have the higher standards of regulation — there’s been no talk of that,” Rivera said.
In another convoluted provision of the bill, the language inadvertently repealed the current abortion clinic regulations, though the commission instituted emergency temporary rules with no changes this summer.
There is still a chance the commission could amend the guidelines in the future.
“It’s still always a concern that they could revisit regulations and certainly, Senate Bill 20 appeared to open the door to that, but it did not mandate a timeline,” Rivera said.
Reach journalist Brenna Flanagan at firstname.lastname@example.org.