Wednesday, July 24, 2024

Judge rules on last-minute changes to abortion law, enforcement still unclear

S.B. 20 goes into effect Saturday, July 1

A ruling from the U.S. District Judge Catherine Eagles blocked one provision of the law while overseeing clarification of the bill’s language. (Port City Daily/Brenna Flanagan)

WILMINGTON — Lawmakers and healthcare providers have been scrambling to clarify changes in the state’s 12-week abortion law before it takes effect July 1. 

READ MORE: Davis backtracks on campaign promise, votes with GOP to override governor veto on abortion bill

The last shoe to drop came Friday afternoon. A ruling from the U.S. District Judge Catherine Eagles blocked one provision of the law while overseeing clarification of the bill’s language. 

Planned Parenthood South Atlantic and Beverly Gray MD filed a lawsuit last week against the state, represented by Attorney General Josh Stein, who is making a 2024 Democratic run for governor. Stein stated he would not defend unconstitutional parts of the law, vetoed by Gov. Roy Cooper but overridden by the Republican supermajority in May. 

Judge Eagles’ blocked provision involves a reporting requirement: that physicians must provide the location of an intrauterine pregnancy. Eagles ruled the plaintiffs are likely to prevail on their claim that it does not give fair notice on how to comply with the law. 

Under current practice, if a patient comes in early enough that a doctor may not be able to see the fetus on an ultrasound, the patient could still be prescribed abortion-inducing medication. Doctors that cannot locate a pregnancy will not technically be able to comply with reporting requirements under the original law.

Eagles has issued a temporary restraining order for this provision until July 14 to allow time for the parties to agree on a solution.

Planned Parenthood hosted a press conference following the decision. 

“There is a huge amount of confusion and, honestly, that’s the goal,” Winston-Salem Planned Parenthood physician Katharine Farris said. “That’s the goal of this type of legislation. The goal is not to make abortion safer. The goal is to make abortion more confusing for doctors and for patients and harder to access for everyone.”

The plaintiffs also raised issue with requiring victims of rape or incest to obtain an abortion in a hospital after 12 weeks, which would most likely result in higher medical bills. Eagles denied a block on this issue, due to the Republicans’ clarification this would not take effect until Oct. 1. Eagles noted the plaintiff’s could file a separate preliminary injunction for this provision. 

As for other contested portions of the law, Republican lawmakers proposed a bill following the lawsuit filing that has cleared up inconsistencies. Cooper signed the bill into law Thursday. 

The amendments assert medication abortions are legal through 12 weeks, whereas the original bill said 10 weeks in one section and 12 in another. It also mandates physicians send a report on a minor’s abortion procedure within 30 days — not three, as previously included in the legislation — to the North Carolina Department of Health and Human Services and Division of Social Services.

Additionally, Eagles affirms: 

  • It is not fetal homicide to perform a lawful abortion upon state statute clarification 
  • Providers are not required to verify that the gestational age is less than 70 days for a medical abortion to be lawful
  • There is a medical emergency exception to the 72-hour mandate, and the 72 hours do not restart if the name of the physician who will perform the abortion is not known or changes
  • Providers are not required to inform the patient whether insurance will cover the abortion
  • Providers can advise a patient on receiving out-of-state abortion care, as protected by the First Amendment 

Despite the clarifications set forth, there are still unknowns when it comes to S.B. 20. 

The forthcoming restrictions on abortion provider facilities could put the state’s 14 clinics in jeopardy of closure if they cannot financially comply with new rules. 

While over 90% of abortions occur in the first trimester, there will still be pregnant people that need to access care past the 12-week mark. 

S.B. 20 provides exceptions in the following scenarios: 

  • Rape or incest, up to 20 weeks
  • Life-limiting fetal anomalies, up to 24 weeks 
  • When a qualified physician identifies a medical emergency, throughout the pregnancy

At Friday’s press conference, Farris said there is lots of debate and conversations among colleagues over the definition of medical emergency. 

As Democratic lawmakers pointed out during the argument over S.B. 20 in May, it is unclear what will constitute a life-threatening situation — whether the pregnant person’s health will need to be in active decline or if a more latent condition will also be recognized. Leaders brought up examples like a cancer diagnosis, which is incompatible with carrying a child, or if someone threatens to commit suicide if forced to carry to term.

“My understanding at this point is that even a patient who was actively suicidal would not qualify for an abortion under this law,” Farris said. “Which is part of the absolute cruelty of this law and not recognizing that mental health is health.” 

Peter Im, attorney with Planned Parenthood Federation of America, noted the “ambiguities work to prevent kids from receiving care and to delay care for patients.” Liz Barber, policy counsel at the American Civil Liberties Union, noted this often leaves doctors waiting until a patient is “sick enough” to follow through with care. 

“That’s one of the many reasons that we shouldn’t be legislating health care is because you cannot boil down into legalese the expertise of a doctor,” Barber said. “We really need to trust our doctors and trust their training to make the best decision for the patient who’s presenting in front of them on any given day.” 

Doctors weren’t consulted when crafting S.B. 20, according to Barber. 

Farris also clarified that victims of rape or incest will not be required to show their provider proof, yet information they supply will be documented for state record.

Law and order 

Confusion is also present at the state agencies charged with overseeing the implementation and enforcement of this law. 

Port City Daily reached out to the North Carolina Medical Board, charged with determining physician compliance with the law, to gain clarity on how these provisions will be interpreted. After all, the board has the authority to revoke physician’s license for breaking the law. 

The medical board’s spokesperson, Jean Brinkley, said it “does not feel it is appropriate to speculate on how it might respond.” She added every case is unique and would be decided based on the circumstances involved. 

Brinkley also noted the medical board does not set the standard of care, only enforces it. She recommended reaching out to the North Carolina Department of Health and Human Services — “the appropriate agency to provide guidelines to physicians.” 

Upon sending NCDHHS the same questions on how the law would be interpreted, spokesperson Bailey Pennington deferred to the North Carolina Medical Board or the General Assembly. 

“NCDHHS does not have a role in defining or governing these terms,” she said. 

Going back to the medical board, Port City Daily’s questions were referred to legal counsel, who stated it would not be appropriate to comment. This was determined for a variety of reasons, according to Brinkley, one being the medical board has not formally considered S.B. 20 in a meeting. 

The board’s current president, Michaux Kilpatrick, was named a defendant in the federal lawsuit. Brinkley cited the changing landscape of the bill due to Republican’s last minute amendments this week.  

“I think it is fair to say that questions about the implications of the new law abound and it is as yet unclear how it would be enforced,” Brinkley said. 

According to NCDHHS, the law will not be enforced through the new reporting requirements delivered to the department. Under S.B. 20, abortion providers are required to report the gestational age of the fetus at time of procedure, the method for determining the age, and an ultrasound of the fetus for every abortion performed after the 12th week. 

This section of the law states the confidentiality of the physician and patient identities shall be maintained. 

However, another provision of the bill states the identity of the physician and patient should be included in a report sent to DHHS, along with almost a dozen other data sets. This includes the patient’s place of residence, age, race, previous pregnancy and birth history, pre-existing medical conditions, and the amount of money billed for services. 

More information is required in the case of complications arising from an abortion, including the specific complexity and if the woman received abortion-inducing medication from a mail-order site. 

Port City Daily asked NCDHHS if it would refer any violations detected in the report to the medical board. Pennington restated the bill’s language — “information provided in the reports to NCDHHS is for statistical purposes only.” 

The department is tasked with compiling the statistics in annual reports that will be made available to the public. 

The bill mandates any health care practitioner or employee of a hospital, a physician’s office, or an abortion clinic, who has knowledge of a failure to comply with the law, shall immediately report the failure to comply with an appropriate State or federal law enforcement agency, or both. Failure to do so would result in a Class D felony. 

The threat of licensure revocation or criminal penalties can often slow down care, as doctors discuss with lawyers on how to proceed in ambiguous situations. There have been reports in other states of doctors scared to perform abortions, even in “medical emergencies,” for fear of breaking the law. Take a woman bleeding profusely for hours due to an untreated miscarriage in Ohio, or a woman at risk of infection after doctors said they could not act on her water breaking at 18 weeks in Missouri

Last year, a report from independent research organization the Commonwealth Fund revealed states with very restrictive abortion laws had maternal death rates that were 62% higher than states with easier access. Making matters worse, an April survey shows new doctors are avoiding states with abortion bans. 

Starting July 1, here are the rules for obtaining an abortion in North Carolina: 

  • Elective abortions are banned after 12 weeks, with the following exceptions:
    • Rape or incest, 20 weeks 
    • Life limiting fetal anomalies, 24 weeks
    • Medical emergencies, throughout pregnancy 
  • Patients must schedule at least three in-person appointments
    • One for the initial assessment 
    • One for the procedure
    • One for a follow-up assessment (though no one will be punished if the patient does not attend)
  • At the initial appointment, patients must sign consent forms, view the fetus and hear its heartbeat 
  • Patients must observe a 72-hour waiting period between first appointment and procedure

Reach journalist Brenna Flanagan at brenna@localdailymedia.com.

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