By Anne Blythe
While state Senators debated legislation that will restrict abortion after 12 weeks in North Carolina on Thursday afternoon, two Duke physicians and a law school professor there held a virtual briefing with reporters to discuss the 46-page bill.
Senate Bill 20, rolled out late Tuesday night, was developed behind closed doors and outside the typical legislative process. The bill flew through legislative votes, passing along party lines this week by the Republican-led state House of Representatives and Senate. Along the way, the bill has drawn many questions from physicians on the front lines who will have to follow new rules for how they provide medical care.
“There’s so many things that are unclear in this legislation as it’s written. It will make it very challenging for health care providers to interpret it, to understand who will merit care after 12 weeks, who won’t,” said Beverly Gray, an OB-GYN and an associate professor in the Duke Department of Obstetrics and Gynecology.
Jonas Swartz, a Duke OB-GYN and researcher in reproductive health equity decisions, said the law “does not use evidence-based medicine.” He added, “It will restrict care to the point it will be really difficult for us to care for our patients.”
In addition to the restriction on abortion after 12 weeks except for instances of rape, incest, situations in which the mother’s life is endangered or when life-threatening anomalies exist for the fetus, there are new processes for obtaining informed consent. Instead of getting consent over the phone or through a telehealth session, physicians will be required to sit down in person with someone seeking an abortion to discuss the procedure and obtain consent. The patient then needs to return to the same physician 72 hours later for the procedure and return again for a follow-up within two weeks.
The bill requires that an ultrasound be performed and has new paperwork requirements with information to be gathered and sent to the state Department of Health and Human Services.
“There are a couple of big red flags or problems with this legislation,” Swartz said. “One of the big things is that they have increased the administrative burden of providing abortion care to an almost untenable level.”
The state currently has a 72-hour waiting period, which Swartz describes as “cumbersome for patients.” The state-mandated counseling can take place over the phone now, he added.
“The idea that they need to have this counseling in person simply is creating administrative hurdles and making it more difficult for people to get abortion care,” Swartz said. “That’s just one of the administrative burdens that they placed on care.”
Swartz added that there is confusion about how many ultrasounds a care provider must administer.
“I feel like there’s a lack of clarity about whether the pregnant person has to have an ultrasound at that juncture. And there’s also a requirement that seems to suggest that the person has to have another ultrasound, potentially a second ultrasound four hours prior to the abortion procedure,” Swartz said. “These sorts of details really matter in terms of how we provide care.
“I can’t really come up with a scenario where it makes sense to provide care with all of the sort of administrative hurdles that have been put in place, so I don’t know how we are going to navigate that as clinics,” Swartz said. “I don’t know how patients are going to navigate that. Essentially, it just makes people waste tons of time in accessing the medical care that they have decided is best for them.”
Jolynn Dellinger, a law professor at Duke, said the legal landscape about abortion law is murky. Since the U.S. Supreme court issued the Dobbs ruling in May 2022, overturning Roe v. Wade and Casey v. Planned Parenthood, legislative bodies across the country have been adding language into new laws that previously had been blocked by the courts.
In North Carolina, a court blocked an attempt by lawmakers to compel physicians to describe what they were seeing as they administered a mandated ultrasound on pregnant people seeking an abortion.
The courts also have ruled in other cases about previous attempts by lawmakers to further restrict abortion in North Carolina.
It’s unclear whether all those rulings are moot now because of the Dobbs decision, Dellinger said.