Both chambers of the N.C. General Assembly are facing abortion-related legislation. One bill seeks to prohibit abortions motivated by a prenatal diagnosis of Down syndrome or race. It expands upon a 2013 law that made sex-selective abortions illegal in N.C.
Two identical bills filed in each chamber, the “Born-Alive Abortion Survivors Protection Act,” purports to extend the same legal protections afforded to people to survivors of abortion, at any stage of development.
Physicians who terminate or fail to attempt to save those born alive under the bill’s definition could be charged with a misdemeanor or murder. Gov. Roy Cooper vetoed a similar version of this bill in 2019; the Senate overrode the veto. While a majority of the House voted to override it, representatives did not secure supermajority, so the bill failed.
The Senate version of the born alive bill passed 28-21 down party lines Tuesday, with the support of local Republican senators Michael Lee and Bill Rabon.
Last week, the House passed the fetal discrimination bill 67-42 with the support of six Democrats; local representatives Charlie Miller, R-Brunswick/New Hanover, Ted Davis, R-New Hanover, and Frank Iler, R-Brunswick, voted in favor of the bill. None of the local Republican senators or representatives responded to a request for comment on the pro-life legislation.
Rep. Deb Butler, D-New Hanover, voted against H.B. 453.
“This is a Bill much like HB2 designed to inflame and misinform,” Butler wrote in an email Tuesday. HB2 — the so-called “bathroom bill” — required people to use public bathrooms that matched their birth certificate. Following intense corporate scrutiny, the 2016 law was eventually repealed in 2017.
While N.C. hasn’t yet seen a race- and genetic-related abortion ban, similar restrictions have passed in other states.
“It’s not new,” said Molly Rivera, Planned Parenthood Planned South Atlantic spokesperson. “It’s definitely out of the playbook, so to speak, out of anti-abortion activists.”
Proponents of the legislation argue termination of a pregancy for the reason of sex, race, or a genetic abnormality is a modern form of eugenics; as prenatal testing advances, the fear among this group is that abortions will further discriminate against innocent lives.
Four states ban abortion for the reason of race or genetic abnormality, according to the Guttmacher Institute, a nonprofit reproductive health research firm. Last month, the 6th U.S. Circuit Court of Appeals in Cincinnatti upheld a 2017 Ohio law that banned abortions after medical tests showed a fetus had Down syndrome. In six other states, the bans have been legally challenged and are not yet in effect.
“It’s incredibly problematic to use people living with Down’s syndrome as a political ploy to ban abortion,” Rivera said. “It is shocking, and shameful, but here’s where we’re at — and it’s already passed the house.”
In an interview last month with the N.C. Values Coalition, a pro-life lobbying group, primary bill sponsor Sen. Joyce Krawiec, R-Davie/Forsyth, explained the state’s anti-discrimination laws should be extended to the most vulnerable.
“Yet, those children in the womb, they are discriminated against,” she said. “Their life is being terminated because they have a disability.”
Down syndrome can be detected with certainty through some prenatal diagnostic testing that includes taking samples from the placenta (detectable as early as 10 weeks) or amniotic fluid (as early as 15 weeks). Prenatal screening, including blood tests or ultrasound measurements, can detect the possibility of Down syndrome earlier in the pregnancy.
Julian March, spokesman for New Hanover Regional Medical Center, said the hospital encourages patients to discuss prenatal screening with their providers. Prenatal screening is typically offered as an option to pregnant NHRMC patients — not a requirement.
Though the rate varies by region, multiple studies have shown a majority of women choose to abort after receiving a prenatal diagnosis of Down syndrome.
Since Denmark introduced universal prenatal screening in 2004, between zero and 13 babies with Down syndrome have been born a year, according to a lengthy article published in The Atlantic last year on the phenomenon.
Researchers found a link 17 years ago in European countries between nation-wide prenatal screening policies and higher rates of Down syndrome terminations. Still, recent research is lacking.
Reached this week, North Carolina Down syndrome Alliance director Christina Reaves shared the organization’s statement on the bill, revealing the legislation “was crafted without the consultation” of the group. “The Staff and Board of Directors of NCDSA is committed to the Down syndrome community and is encouraged by other initiatives that work to directly impact the lives of people with Down syndrome in North Carolina,” according to the statement.
N.C. is one of 11 states with a sex-selective abortion ban. There is limited and inconclusive evidence that women seek sex-selective abortions in the U.S., according to the Guttmacher Institute.
The proposed bill would create a new requirement for physicians to disclose whether the race, sex, or presumption of Downs syndrome was detected in abortions after 16 weeks. Providers must also sign a statement affirming the patient “did not tell” them or they had no “reason to believe” a woman sought an abortion for these reasons.
Opponents argue these requirements place a burden on providers. In a recent House hearing, Dr. Katherine Farris, Planned Parenthood’s chief medical officer, testified she could not certify what is in a patient’s heart.
“It’s problematic because when you’re in the doctor’s office, especially when you’re dealing with something like whether or not to end a pregnancy, you want to be able to have an open and honest conversation with your medical provider,” Rivera said. “This interferes with that. It forces doctors to interrogate their patients. It forces people to second-guess their decisions.”
Abortions supervised by a physician are legal in N.C. up to 20 weeks of gestation. After 20 weeks, women may obtain an abortion if there is a medical emergency. Women must wait 72 hours after an initial consultation until receiving an abortion, one of the longest waiting periods in the U.S. Before the three-day waiting period begins, patients must undergo a state-mandated counseling session. A 2018 review of one N.C. clinic conducted by UNC School of Medicine Department of Obstetrics and Gynecology researchers found the waiting period had no medical benefits; most women make their decision quickly but still wait 10-15 days before receiving medical care.
Identical bills in both chambers propose to lift abortion insurance coverage restrictions for government employees, allow physician’s assistants, nurse practitioners, and certified nurse-midwives to practice abortions, and would allow practitioners to provide virtual abortion pill assistance. N.C. is one of 18 states that does not permit telemedicine abortions. Butler is a primary sponsor for the House version of the bill; both failed to reach the floor for a vote and died on the crossover deadline Thursday.
Physicians must record and turn over abortion records to the state for abortions performed after 16 weeks, including the methodoly used, fetal measurements, and an ultrasound image, per a 2015 law. These records are confidential and must be used for statistical purposes only.
“There’s problematic privacy concerns that come along with stockpiling medical images at a government agency,” Rivera said.
In 2019, physicians assisted 517 New Hanover County residents with 531 abortions, according to N.C. Department of Health and Human Services data. Statewide, they are most common among unmarried women.
State funds may not be used to pay for abortions except in the case of rape, incest, or when the mother’s life is endangered.
In 2011, lawmakers passed a law that required physicians who perform abortions to display an ultrasound image of the fetus and share details about its dimensions and offer the woman the opportunity to hear its heartbeat at least four hours before the procedure. Women were permitted to avert their eyes, decline to hear the heartbeat, or refuse to hear the explanations. These requirements were rendered unconstitutional by a federal court and upheld by a federal appeals court in a case brought by the ACLU. The Supreme Court declined to review the ruling in 2015.
Just one clinic, Planned Parenthood in Wilmington, offers abortion services in all of southeastern, N.C.
One in four U.S. women will have an abortion by the time they reach 45, according to a 2017 American Journal of Public Health report. The abortion rate is higher among women with incomes lower than the federal poverty line.
Update: This article has been updated to correct the source of a small study conducted in N.C. The North Carolina Institute of Medicine and The Duke Endowment co-publish the NC Medical Journal, where the study was published, but did not author the study.
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