By Rachel Crumpler, Anne Blythe and Rose Hoban, North Carolina Health News
Gov. Roy Cooper‘s weekend veto of new abortion restrictions will test the mettle of Republican vote-wranglers in the state Senate and House of Representatives who say that they have the necessary supermajorities in both chambers for an override.
Cooper wielded his veto stamp to much fanfare on Saturday morning during a sometimes-raucous rally on Bicentennial Mall, the public space between the Capitol and the Legislative Building in downtown Raleigh.
“This bad bill needs a return to sender,” said an animated Cooper as he leaned over his podium to point to the legislative building. The crowd erupted into applause and chants of “Veto! Veto! Veto!”
The stamped version of Senate Bill 20 goes back to lawmakers, who need 30 votes in the Senate and 72 votes in the House to counter the governor’s action.
Sen. Dan Blue, a Democrat from Raleigh, said after attending the rally that he expected those votes to be taken early this week. As the Senate minority leader, Blue said he should get a 24-hour heads-up before his chamber is scheduled to take an override vote.
The House, whose 120 members rarely speak with a monolithic voice — even within the parties — has no such rules. Many who are advocating to uphold or overturn the veto say this is the chamber to watch.
Cooper issued a rallying cry to the crowd of nearly 1,000 people who turned out to cheer the much-heralded veto. The governor, joined on stage by doctors, women and reproductive rights advocates, urged his supporters to contact four Republican lawmakers whose 2022 campaigns included support for North Carolina’s current law — which allows abortions up to 20 weeks into a pregnancy.
Those lawmakers are Sen. Michael Lee (R-Wilmington), Rep. John Bradford (R-Cornelius), Rep. Ted Davis Jr. (R-Wilmington) and Rep. Tricia Cotham, the Charlotte lawmaker who switched parties five months after winning her Mecklenburg County seat as a Democrat. All of these legislators said on the campaign trail that they’d support fewer restrictions on abortion than what the current bill proposes.
“If just one Republican in either the House or the Senate keeps a campaign promise to protect women’s reproductive health, we can stop this ban,” Cooper said Saturday. “There are four legislators who made these promises, but I think there may be more who know in their hearts and minds that this is bad.”
The bill is opposed by the North Carolina Medical Society, the North Carolina Obstetrical and Gynecological Society, the North Carolina Academy of Family Physicians and the NC affiliate of the American College of Nurse-Midwives.
In a retort, Senate Leader Phil Berger (R-Eden) and House Speaker Tim Moore (R-Kings Mountain) released statements over the weekend, saying they expected a quick override vote on the legislation that Republicans titled the “Care for Women, Children, and Families Act.”
When the bill was adopted along party lines almost two weeks ago, Republican lawmakers vehemently objected to characterization of the legislation as an abortion ban. They contend it is a “mainstream abortion compromise.”
Making most abortions after 12 weeks illegal is not as restrictive as laws enacted by other Republican-controlled legislatures since Roe v. Wade was overturned by the U.S. Supreme Court last June. Many new GOP-sponsored laws have banned most abortions at any stage of pregnancy or after six weeks.
However, abortion rights supporters assert that embedded in the North Carolina bill is a series of medically unnecessary and burdensome requirements that could pose hurdles that make care inaccessible even before 12 weeks.
In 2020, 22,053 abortions in North Carolina were obtained before 12 weeks, according to the latest data available from the State Center for Health Statistics. Another 1,841 abortions occurred after 12 weeks, with only a handful after 20 weeks, and 1,164 procedures occurred at an unknown gestational age.
“It is not only a ban on abortion after a certain point in pregnancy, but it is wrapped up in 46 pages of other restrictions and barriers on abortion care, both after 12 weeks of pregnancy and even before 12 weeks of pregnancy,” said Molly Rivera, Planned Parenthood South Atlantic spokesperson.
Additionally, language in the bill has left questions for physicians on the front lines, who will have to follow new rules governing how they provide medical care.
“None of these hoops are helpful, and none do anything to improve the care that we’re providing our patients,” said Jonas Swartz, a Duke OB-GYN and researcher in reproductive health equity decisions.
Reminiscent of a campaign
Cooper spent the week leading up to the rally working to change the narrative launched by North Carolina Republicans after they rolled out the bill, which was crafted behind closed doors. According to a story published in The Washington Post, lawmakers who were part of the secretive process were not permitted to make copies or take pictures of working drafts.
Cooper’s veto rally and his criss-cross tour of North Carolina to discuss the intricacies of the bill have included many elements that resembled a political campaign.
Term limits prohibit Cooper from running for governor in 2024. Democrat Josh Stein, the state attorney general who has already announced his plans to seek the office, was part of the Saturday rally.
While Cooper and Stein spoke, abortion rights advocates hoisted signs such as “Abortion is Health Care” and “Bans Off Our Bodies.” At the same time, several dozen supporters of the new abortion restrictions rallied across the street in front of the legislative building with chants of “Pro-life is pro-love.”
During the 10 days after the bill’s passage and before it would become law without Cooper’s signature, the governor held three roundtable discussions with physicians, patients and advocates who talked about how SB20 would harm women’s reproductive freedom. Those discussions were in the districts where he hopes the public will persuade at least one Republican lawmaker to vote with Democrats to uphold his veto.
“When women’s health is on the line, I’ll never back down,” an impassioned Cooper proclaimed to the crowd Saturday.
In addition to new reporting requirements, the bill mandates that:
- A person seeking abortion meet at least two times with a physician — first for an office visit for a sonogram and the start of the required 72-hour waiting period, then for the procedure. Physicians are to let the patient know that they’ll be scheduling a follow-up visit within the coming two weeks, which could mean a third visit.
- Medication abortions are blocked after 10 weeks. Republicans have countered this, saying: “The U.S. Food & Drug Administration approved the drugs used for medical abortions if the gestational age is no more than 10 weeks. Senate Bill 20 requires doctors to verify the gestational age of a baby for medical abortions, but it does not prohibit physicians from prescribing abortion-inducing drugs off-label, as long as it is during the first 12 weeks of a woman’s pregnancy.”
- Abortions after 12 weeks must be performed in hospitals.
Republican leadership denounced Cooper’s descriptions of the details of the bill before and after the veto. In a news release sent after the rally, House Speaker Tim Moore (R-Kings Mountain) wrote that Cooper’s veto would be “swiftly overridden.”
Digging into the details
Since the fast-tracked passage of SB20 less than two weeks ago, abortion clinics’ staff have been working with lawyers to understand the implications of the bill on their operations and the changes they may have to make to be compliant with the law.
Several of the requirements outlined in SB20 could significantly affect the state’s 14 abortion clinics in nine counties.
One of the biggest changes is requiring an in-person appointment for state-mandated counseling at least 72 hours before an abortion. Currently, counseling often occurs by phone or telehealth. Doctors assert that the in-person requirement is medically unnecessary and wastes time.
“I think the strategy of this in-person 72-hour regulation is just to limit care of patients traveling from out of state,” said Beverly Gray, an OB-GYN at Duke, during a media briefing with reporters about the bill. “It’s not increasing the safety of care.”
Rivera also said the new requirement would add another layer of complexity to coordinating care and that the increase in visits per patient will affect clinic workflow at Planned Parenthood’s six abortion clinics in the state.
Amber Gavin, vice president of advocacy and operations at A Woman’s Choice, an abortion provider with three clinic locations in the state, agreed with the increased logistical challenges of scheduling more in-person visits. Depending on the day, she said clinics may not necessarily have the seating and parking capacity to accommodate patients who are coming in for an abortion procedure and who are there for the state-mandated counseling.
SB20 also requires an in-person follow-up visit to be scheduled seven to 14 days after a medication abortion.
Despite the challenge of more in-person visits for clinics, which Rivera noted are already strained, she said she expects the requirement to be tougher for patients to manage.
“We expect that to be a significant barrier for many patients, and probably an insurmountable one,” Rivera said. “Especially for folks in rural parts of the state who have to already drive hours to get to an abortion clinic. Especially for folks that don’t have paid time off of work. Especially for people who already have kids at home.”
With the additional requirements SB20 would impose, Gavin said she believes people out of state — and even North Carolinians — may opt to seek an abortion elsewhere.
“It might be easier for patients to travel farther — so they wouldn’t have as much time off from work, as much of these costs and these barriers — in order to access their care,” she said.
Hospital care requirement
After 12 weeks, the bill mandates that all other abortions permitted under the exceptions for rape, incest, fetal anomalies and to preserve the life of the mother be obtained at a hospital.
Swartz, the Duke OB-GYN and a Planned Parenthood abortion provider, said that designation is “completely arbitrary,” as clinics have been providing safe abortions beyond 12 weeks for years.
“It is an invented line by the bill authors or bill sponsors with an invented set of anxieties and concerns that they are using to stigmatize the procedure and prevent patients from safely being able to access care,” Swartz said.
Shifting care past 12 weeks from clinics to hospitals will burden already-taxed health care systems, Swartz said. He added that fewer than 10 hospitals in the state currently provide abortion care in non-emergent situations.
“We already have difficulty finding enough operating room time to care for the patients who are presenting to us,” Swartz said. “This could represent a significant crunch.”
Getting an abortion in a hospital is also likely to be five to 10 times more expensive than it would be to have the procedure at an outpatient clinic, Swartz said.
“Think about that cost: You have anesthesia, you have a cost for the operating room, all the staff, the turnover of instruments,” he explained. “Hospitals just use a lot more resources.”
This could be significant as many insurance policies — including the State Health Plan and Medicaid — are restricted from covering the cost of an abortion. Most abortions are paid out of pocket, advocates say, and some people currently struggle to pay for the procedure.
Rivera said Planned Parenthood clinics can offer services on a sliding scale and provide financial assistance so that care is within reach.
Pondering potential licensing modifications
Language in the bill gives the North Carolina Medical Care Commission the authority to rewrite regulation on abortion clinics by Oct. 1, opening the door for potential new requirements. The commission has the authority to implement stricter licensing rules, though it is not required to do so. The commission members are currently appointed by the governor, but the latitude for new rules concerns clinic staff.
If the commission were to adopt more stringent licensing standards, Rivera said none of Planned Parenthood’s clinics would meet all the requirements as they currently operate.
“Every single one would have to go through the arduous process of modifying,” Rivera said. “I’m not sure everything that goes into this, but modifying facilities, modifying some things related to personnel to meet those new requirements. At least some of our health centers, we think, would not be able to meet them in the near future. And it would require, we’re guessing, a pretty significant capital expense for some of that.”
Gavin said that the three A Woman’s Choice clinics would also likely have to undergo changes if stricter standards are imposed on abortion clinics.
Stricter regulations would not be medically necessary, said Susanna Birdsong, general counsel and vice president of compliance at Planned Parenthood South Atlantic.
“It’s important for people to understand that we’re not performing surgery when we perform abortions, and we don’t need to be regulated like that’s the type of procedure that we are providing,” she said. “There is no incision into any part of the body.”
Swartz, who provides abortions at Planned Parenthood, agreed there is no need for further regulation.
“Having a colonoscopy and having your wisdom teeth removed are more dangerous than having an abortion, but the legislators aren’t making any attempts to regulate the facility standards of the types of places that provide those procedures,” he said. “So this is simply one way to ideologically oppose abortion and has nothing to do with safety and quality.”
As it stands now, Rivera said clinics already are subject to rigorous licensing requirements. In fact, she pointed to the fact that three other Planned Parenthood health centers in the state are unable to provide abortion care — even medication abortion — because they do not meet medically unnecessary requirements like having a 60-inch wide hallway.
“We are no strangers to these medically unnecessary requirements, but that would be a whole new level,” Rivera said. “But we’ve had to contend with regulations that don’t make sense to the health care we’re providing before, and we would do everything in our power, just as we do every day, to keep the doors to our clinics open. But it’s getting harder and harder.”
Electoral issue for both camps
Whatever ends up happening in the days ahead, many expect Senate Bill 20’s proposed restrictions to be an issue in the 2024 elections.
North Carolina Republicans who long have courted pro-life voters are trying to thread a needle by not going with a full ban in a play for more moderate voters.
Meanwhile, if Saturday’s rally is any indicator, Democrats will use the bill to mobilize voters.
After Saturday’s event, Sen. Dan Blue scrolled through his phone to find an email his office had received from a Nash County Republican, who let him know that SB 20 “was too much of a ban,” and that it should be a woman’s choice.
“I think it will be a very big campaign issue,” Blue said.