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It may be necessary to stop calling North Carolina’s Republican legislators “lawmakers.” Too often what they make doesn’t hold up as law.
On Tuesday, while the Supreme Court was pondering North Carolina’s extreme gerrymandering, which has led to the passage of at least a dozen unconstitutional laws since 2011, a federal judge stuck down North Carolina’s ban on abortions for women who are more than 20 weeks pregnant.
The ban dates back to the 1973 Roe v. Wade decision, but it came under challenge by the Center for Reproductive Rights, the ACLU and Planned Parenthood after Republican lawmakers decided to tighten its restrictions in 2015 with changes that took effect in 2016. Until then, the law had allowed abortions after 20 weeks to protect the health of the mother based on the judgment of her doctor. Proponents of tighter restrictions said the health exception was being abused to get around the ban.
Rep. Paul “Skip” Stam, a Republican from Apex, said at the time that the ban was “full of holes.” The Republican fix was to require that exceptions be allowed only to prevent a woman’s death, or in cases where a delay “would create serious risk of substantial and irreversible physical impairment of a major bodily function.” Any exceptions related to a mother’s psychological or emotional health were eliminated.
Abortion after 20 weeks represents about 1.5 percent of abortions, according to the Guttmacher Institute, which studies reproductive health and rights.
U.S. District Judge William Osteen Jr. ruled that the North Carolina ban does not comply with the Supreme Court’s ruling that viability cannot be set at a fixed number of weeks. Instead, the Supreme Court has said, viability should be determined by a doctor, since it can vary with each pregnancy. Osteen added that the ban “criminalizes all non-emergency abortions performed after twenty weeks, without regard to the type of procedure or how the abortion is obtained.”
The judge stayed his ruling for 60 days to give legislators time to appeal or pass new legislation. Other restrictions in the 2016 legislation included extending the abortion waiting period from 24 to 72 hours and requiring that doctors who perform abortions after 16 weeks send ultrasound images to the state. Those provisions are not affected by the judge’s ruling. Meanwhile, two bills adding restrictions on abortion pills and abortion techniques have been proposed this session.
Elizabeth Nash, a state policy analyst with the Guttmacher Institute, said, “The North Carolina legislature has kind of gone to town on abortion restrictions over the last few years.”
Steps to limit abortions are emotionally compelling, but the morality driving such limits is often inconsistent. Many abortion opponents also oppose expanding access to contraceptives.
It’s no small irony that on the day of Osteen’s decision, the Trump Justice Department announced it supports total repeal of the Affordable Care Act. The ACA requires health plans, with a few exceptions, to provide contraceptives. It also supports the pre-natal health of low-income young women so those who become pregnant have healthier babies. Meanwhile, the North Carolina legislature refuses to expand Medicaid, a change that would increase access to contraceptives and likely reduce the state’s high rate of infant mortality.
In what should be good news for both sides, more effective and more affordable contraception is helping to reduce the incidence of abortion. According to the Guttmacher Institute, abortions peaked in 1985 at 1,588,550. In 2014, the number dropped to 936,200. The rate of abortions has fallen sharply from 29 percent of pregnancies in 1982 to 14 percent in 2014.
North Carolina would do well to encourage this trend by supporting women’s health instead of restricting their rights.