A federal appeals court on Thursday ruled that North Carolina's ban on abortions after 20 weeks of pregnancy is unconstitutional, and the court refused to reinstate the ban, which a lower court struck down two years ago.
The 20-week ban was first passed in 1973. That was the year the U.S. Supreme Court issued its Roe v. Wade decision protecting abortion as a constitutional right until a fetus develops enough to live outside the womb, generally between 24 and 28 weeks.
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While abortion remains legal in all 50 states, 43 have some form of restriction on the procedure after a fetus becomes viable. North Carolina lawmakers who support the ban have argued that viability can be as early as 20 to 22 weeks.
Abortion providers challenged the 20-week ban in 2016, shortly after the General Assembly approved several other abortion-related restrictions, such as a 72-hour waiting period for a woman to obtain an abortion, limits on who could provide an abortion and a more narrow exception for medical emergencies under which a woman would be exempt from the 20-week limit.
Previously, the procedure was allowed if there was “substantial risk” to the woman’s health. Lawmakers changed that to allow it only in situations where the mother faced a risk of death or serious and irreversible harm from an urgent medical emergency.
Three physicians said they feared prosecution under the updated law, but attorneys for the state argued that the physicians didn't have the right to challenge the law because they hadn't faced any charges or administrative action. No one had been prosecuted for providing an abortion in North Carolina for years, the state's attorneys said.
A three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond, Va., unanimously ruled, however, that lawmakers' decision to expand abortion restrictions makes it clear they plan to enforce the law.
"Amidst a wave of similar state action across the country, North Carolina has enacted legislation to restrict the availability of abortions and impose heightened requirements on abortion providers and women seeking abortions," the judges wrote in their decision. "Given these facts, we cannot reasonably assume that the abortion ban that North Carolina keeps on its books is 'largely symbolic.' Accordingly, we agree with the district court that the providers have established a credible threat of prosecution and therefore have standing to bring this suit."
The was no immediate word on whether the state would seek a hearing before the full 4th Circuit court or appeal the ruling to the U.S. Supreme Court.
"A patient should be able to make important medical decisions without interference from politicians,” Dr. Katherine Farris, chief medical officer of Planned Parenthood South Atlantic, said in a statement. “When someone has made the decision to have an abortion, they should be able to get one, without facing unnecessary restrictions that force them to delay care or carry a pregnancy to term against their will."
Federal courts have previously struck down other abortion laws that North Carolina legislators passed. In 2014, they blocked a 2011 law requiring abortion providers to show and describe an ultrasound to the pregnant woman.
Meanwhile, abortion clinics, physicians and others sued in state court last September, seeking to overturn five other abortion restrictions, including the 72-hour waiting period.
The Republican-controlled General Assembly remained undeterred, however. The legislature last week passed a ban on abortions following a prenatal diagnosis of Down syndrome, and a proposal that would require physicians to care for an infant that survived a botched abortion has cleared the Senate.