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Top Republicans in the state legislature and the state’s attorney general are squaring up to fight over the line North Carolina drew on abortion nearly 50 years ago.
North Carolina is poised to be one of the only states in the South to allow abortions after the U.S. Supreme Court struck down Roe v. Wade last week in a 5-4 decision. The high court said each state should be able to decide whether to allow, regulate or ban abortions.
Since then, officials in eight states announced that abortion has been outlawed. Several states have a so-called “trigger ban,” which was set to prohibit abortion if the high court also overturned Roe.
While no trigger ban is on the books in North Carolina, a 1973 state law bans abortions after the 20th week of pregnancy. However, a federal court awarded an injunction against that ban in a 2019 case, Bryant v. Woodall. That injunction still stands, which prevents state officials from enforcing the ban on abortions after the 20th week of pregnancy.
Attorney General Josh Stein, a Democrat, recused himself for the Bryant case, his staff said this week.
State Senate President Pro Tem Phil Berger, R-Rockingham, and State House Speaker Tim Moore, R-Cleveland, the top Republicans in the GOP-controlled General Assembly, asked Stein and his office to defend the state’s 20-week ban in a letter last week.
“We respectfully call on you and the Department of Justice to take all necessary legal action to lift the injunction currently barring the full enforcement of our State’s abortion restrictions,” the letter said. Berger and Moore asked Stein to respond by Friday.
Stein had not responded as of late Wednesday, although his office said the legislative leaders can expect a response before the July 1 deadline.
The state legislature is slated to wrap up its work on the short session this week, and Lauren Horsch, Berger’s spokeswoman, said he doesn’t expect to take up any legislation related to abortion this year.
When the dust settles
Several other states, including South Carolina and Georgia, are likely to ban abortion, too, according to The New York Times. When the dust settles, North Carolina, Virginia and Florida may be the only Southern states that do not outlaw the practice. And it’s entirely possible that Virginia and Florida, which both have Republican governors, could outlaw abortion in the near future, depending on how political winds blow.
As surrounding states ban abortion, clinics in North Carolina expect a rise in the number of patients without a corresponding increase in appointment availability.
Amber Gavin, spokeswoman for A Woman’s Choice abortion clinics, said estimates for the increase in demand range from a 20% increase to nearly double the demand, although it’s too soon to be certain.
While North Carolina has a 72-hour waiting period for abortion, the first appointment can happen over a video or phone call.
“AWC clinics are prepared to be open for longer hours and additional days to accommodate as many people as we can that need care,” Gavin said.
If Stein’s office takes legal steps to restore the 20-week ban, Horsch said, “then the General Assembly likely won’t have to get involved any further.”
But if Stein doesn’t act to restore the ban, the situation gets more complicated.
November election stakes in NC
“Then the legislative leaders will evaluate their options for how to best restore the ban,” she said. “With the short session ending this week, we do not anticipate taking up any pro-life legislation until next year.”
Both chambers of North Carolina’s legislature currently have Republican majorities, although neither has enough votes to override a veto by Gov. Roy Cooper, a Democrat.
Putting potential legislative action on hold until 2023 would mean waiting until after the outcome of November’s elections, when Democrats hope to eat into the Republican majority in both chambers of the General Assembly, and Republicans hope to expand their advantage and reclaim the veto-proof majority they held a few years ago.
In a press release sent Friday, Stein directly associated the future of abortion law in North Carolina with elections. State law currently “protects women’s reproductive freedoms,” Stein said. “If we want to keep our freedoms under state law, then we have to elect state officials who commit to protecting them.”
Each chamber requires a supermajority of three-fifths of elected lawmakers to override a gubernatorial veto: at least 72 in the 120-member House and 30 in the 50-member Senate. Republicans command a lead in both chambers, with 69 Republicans in the House and 28 in the state Senate.
Elections for the state Supreme Court could also have significance for the future of abortion in North Carolina, and voters’ views on abortion could play a major role in high court elections this fall.
Of the seven justices on the state Supreme Court, three are Republican, and two spots occupied by Democrats are up for grabs this fall. If even one Republican challenger wins, it could tilt the balance against abortion access in one of the last remaining states where it is legal in the South.