By Elizabeth Thompson and Rose Hoban
As abortion rights advocates across the country chewed over a leaked U.S. Supreme Court draft opinion that would strike down the 1973 landmark Roe v. Wade decision that legalized abortion, North Carolina Democrats emphasized the importance of the state government’s role in keeping abortion legal.
At a press conference at the North Carolina General Assembly on Wednesday, North Carolina Democrats and abortion rights advocates stressed that the draft opinion is not yet in effect.
Sen. Natalie Murdock (D-Durham), said the future of abortion “will begin in the States.”
“What we now unfortunately know is we cannot depend on the U.S. Supreme Court,” Murdock said. “It is up to us and state legislative bodies to continue to hold the line to say that we will fight to maintain full freedom and autonomy over our bodies so that we can determine our own future and destiny.”
The leaked draft opinion, written by Justice Samuel Alito, would overrule Roe v. Wade, which gave pregnant people the ability to choose to have an abortion without excessive government restriction.
Should the draft become the Supreme Court’s decision, it would throw decisions about abortion access to state governments, instead of being a federally recognized right.
Meanwhile, North Carolina has laws on the books that limit the ability to get an abortion. Some of those statutes pre-date 1973, when Roe went into effect, and some were penned after in attempts to chip away at Roe’s allowances.
But what would happen in North Carolina is far from clear.
Crossing state lines
In the past year, Texas and Oklahoma passed restrictive abortion laws that only allow the procedure for up to six weeks after conception. In the wake of implementation, abortion providers in other states have said they’ve seen patients arriving from Texas.
“We have helped patients come in from as far as the Rio Grande Valley, all the way to our clinic in Minnesota or our clinic in Virginia, or Maryland,” Sonja Miller, head of the Texas-based Whole Woman’s Health Alliance, told a gathering of health care journalists in Austin, Texas this past weekend.
Whole Woman’s Health, which also has clinics in other states, recently opened a clinic south of Minneapolis.
“[We] began serving our first patients with in-clinic surgical procedures at the end of February,” said Miller.
Miller referred to surgical abortions, which tend to take place after about 12 weeks of pregnancy and require a physical procedure done by a health care provider. In recent years, people looking to terminate a pregnancy have also had the option of “medical” abortion, which uses a combination of mifepristone and misoprostol pills to end a pregnancy. Medical abortions can be self-administered by the person seeking an abortion and can only be used for up to about 12 weeks after conception.
Miller said that her organization deliberately situated the Minnesota facility close to the airport.
“We … opened it because we wanted a place that is in a safe state, a haven state,” she said. “Minnesota is such a state where we could take our patients.”
She said that about 30 percent of the patients currently being seen at that clinic are from outside of Minnesota, with many arriving from Texas.
In 2020 in North Carolina (the latest year for state statistics), the state Department of Health and Human Services recorded 25,058 abortions, with 37.4 percent of procedures done surgically, and 59.1 percent of abortions were accomplished using the combination of pills. (DHHS data notes that 3.5 percent of procedures are “unknown.”)
Statistics show of all the procedures taking place in North Carolina in that year, almost 99 percent of procedures were performed on state residents.
That could change, said Meghan Boone, a faculty member at the Wake Forest University law school who specializes in issues of constitutional law and reproductive rights. She said North Carolina could see an influx of people seeking abortion care in the coming months if the Supreme Court strikes down Roe later this summer.
North Carolina is circled by states that have so-called “trigger laws” which go into effect to restrict or ban abortion should the Supreme Court overturn Roe, she explained. And it is likely that South Carolina, Tennessee and West Virginia would all ban abortion as soon as the Supreme Court decision is made.
The laws on North Carolina’s books, however, are less clear.
“There’s a little bit of sort of squishy language in 14-44,” Boone said referring to the North Carolina law written in 1881 that made abortion illegal.
That law was altered in modern times, first by a 1967 law that made abortion legal to preserve the life of the mother, in the case of the pregnancy resulting from rape or incest, or if “the child would be born with grave physical or mental defect.”
Eventually, state law was altered in 1973 to conform with the Roe v. Wade ruling that had been decided earlier that year, but the North Carolina statute placed a prohibition on procedures taking place after the 20th week of pregnancy. That post-20-week ban was struck down by a federal judge in the Bryant v Woodall case, which was decided in 2021.
All those layers of laws and court decisions make for a murky picture in the absence of Roe, Boone said.
“You have one part of the criminal code that says ‘you can’t do this,’ but then other parts of the criminal code that say, ‘you can do this in these sorts of circumstances, situations’” she said. “It’s just not clear that you would be able to criminally prosecute someone under these earlier laws in the face of more modern laws that suggests that legal abortions are legal.”
Enforcement in a post-Roe world
It’s also not clear what would have to happen to make North Carolina’s older laws go into effect.
“You could have a prosecutor who decided to bring charges and then I think in the face of that you would have a criminal defendant who would make an argument that that law was no longer valid in light of the post-Roe subsequent changes to the criminal code, which made their particular circumstance legal,” Boone said.
There’s also the possibility that the legislature could act, she said. But Democratic Gov. Roy Cooper has vetoed several abortion bills passed by the Republican-majority legislature since he was elected in 2016.
Cooper doubled down on his support for abortion in a tweet Monday night, as the Supreme Court leak started to go viral on social media.
There could be further legislative action to reinstate the 20 week limitation law, but with a Democratic governor and too few Republicans in the legislature to override a gubernatorial veto that seems unlikely.
That reality led Democrats at the press conference in Raleigh to encourage people to go out to vote, even as Republicans circulated talking points about how to encourage voters to adopt their point of view.
Meanwhile, advocates cautioned that the leaked draft is just that — a draft. Abortions remain legal in North Carolina, and nothing has changed yet, said Jillian Riley from Planned Parenthood South Atlantic.
“This is not final,” Riley said. “Abortion is still safe and legal and constitutionally protected in the state of North Carolina.”
Nonetheless, she said abortion providers were getting ready for the actual decision later this year. She said the leaked draft gives providers “a little more time to be able to prepare.”