By Rachel Crumpler
Abortions after 20 weeks of pregnancy are no longer legal in North Carolina, a federal judge ruled Wednesday, marking the first erosion of abortion access in the state since the U.S. Supreme Court overturned the 1973 Roe v. Wade decision in late June.
U.S. District Judge William Osteen Jr. reinstated North Carolina’s 20-week abortion ban, cutting the limit of time pregnant people have for seeking abortions in the state from fetal viability, which typically falls between 24 and 26 weeks of pregnancy. For the past three years, the ban had been blocked by an injunction Osteen issued in 2019.
“The significant problem with this ruling is that it will criminalize important health care that’s needed in certain extraordinary circumstances,” Democratic Governor Roy Cooper, an abortion rights supporter, said in a statement.
“Abortion past 20 weeks in pregnancy is exceptionally rare and happens because of a devastating health emergency or diagnosis,” the governor’s statement continued. “Denying women necessary medical care in extreme and threatening situations, even if rare, is fundamentally wrong.”
In 2020, there were 30 abortions performed at 21 weeks or later in North Carolina, comprising about 0.1 percent of total abortions in the state.
Despite briefs filed earlier this month by doctors, district attorneys and the attorney general’s office in favor of allowing the injunction to stand, Osteen lifted it on Aug. 17, explaining that the legal foundation of the injunction no longer stands since, under the Dobbs decision, there is no constitutional right to a pre-viability abortion.
“Neither this court, nor the public, nor counsel, nor providers have the right to ignore the rule of law as determined by the Supreme Court,” Osteen wrote in his court order.
Senate leader Phil Berger (R-Eden) and House Speaker Tim Moore (R-Kings Mountain) had urged Osteen to restore the ban in a July 27 brief.
2020 NC Resident Abortion Statistics from the State Center for Health Statistics
- 25,058 abortions were provided to NC residents (98.5 percent obtained in-state).
- 56.6 percent of abortion seekers were 20 to 29 years old.
- 49.3 percent of abortion seekers were African American, 27.9 percent were white and 13.1 percent Hispanic.
- 58.7 percent of abortion seekers had 13+ years of education.
- Two-thirds of abortion seekers were already parents to one or more children.
- A total of 48 NC residents obtained abortions taking place after 21 weeks. Thirty of those procedures were performed in-state and 18 took place out of state.
Ban causes concern
While the number of abortions performed after 20 weeks are minuscule compared to the state’s total, abortion rights groups said in a joint statement that “people will suffer from this dangerous ban” as the abortion access landscape in North Carolina and the surrounding region changes.
“People seeking abortion later in pregnancy often do so because they face delays in accessing abortion care or dangerous complications with their pregnancy,” Jenny Black, president and CEO of Planned Parenthood South Atlantic, said in a statement. “Many need time to secure funds, time off work, transportation, and childcare, and often encounter other barriers in obtaining care, including medically unnecessary, state-mandated restrictions like North Carolina’s 72-hour forced waiting period.
“Others may seek abortion after the 20th week of pregnancy after learning new information about their own health or the health of the fetus, which may present a serious medical emergency.”
The reinstatement of the 20-week abortion ban came just a day after three Duke Health physicians voiced concern in a media briefing on Aug. 16 about how further restrictions could compromise pregnancy care in the state and nation.
“We need these conversations to be between pregnant individuals, individuals considering pregnancy and folks who can really understand and give very thoughtful and helpful information,” said Maria Small, a maternal-fetal medicine specialist at Duke Health.
Ramifications on pregnancy care
States across the country have implemented strict abortion bans, leaving health care workers in increasingly complicated positions as they navigate caring for pregnant patients.
Most abortions are banned in at least 10 states and an additional four states ban abortion after six weeks of pregnancy, a time before many women know they are pregnant, according to an abortion tracking map created by the Guttmacher Institute, an organization that aggregates information on reproductive health issues.
“In states like Texas and others that already had a strict ban in place, they’re seeing how the changes are happening right before their eyes,” said Beverly Gray, residency director at Duke’s Department of Obstetrics and Gynecology. “They’re seeing patients’ lives being put at risk on a daily basis. They’re having to give patients non-evidence-based advice and recommendations because their state legislators are saying that that’s the right thing to do.”
Compared to neighboring states such as Georgia and Tennessee which have banned abortion after six weeks of pregnancy, North Carolina’s 14 abortion clinics remain abortion access points for state and out-of-state residents.
But the quickly changing legal landscape related to abortion access is detrimental to the future of women’s health care, Gray argued. She said she expects restrictions to have many downstream consequences.
“I am worried that there will be an increase in maternal mortality,” Gray said. “I worry that patients are going to have to travel further for care. As residency director, I worry about the next generation of physicians that we’re training.”
Laws enacted by legislators to restrict abortion have more consequences than they realize, the three Duke physicians explained throughout the media briefing.
“I think the other downstream effects that I don’t think we’re prepared for nationally is an increase in birth rates,” Gray said. “We already see rural hospitals closing their obstetric units. And now, at Duke, we’re seeing more and more deliveries every year. And so I think that’s another thing that, as medical providers across the country, we need to start thinking about — how we’re going to prepare for more pregnancies.”
While access to abortion hasn’t changed drastically in North Carolina since June, physicians are hearing a flood of new concerns come from patients of reproductive age.
Megan Clowse, a rheumatologist at Duke Health who cares for patients with a rheumatic disease who are pregnant or wish to become pregnant, said more patients are seeking tubal ligation, a surgery to permanently close a woman’s fallopian tubes to prevent pregnancy, instead of relying on other contraceptives such as birth control pills or an intrauterine device.
“I am hearing women who are afraid of having something bad happen to them during a pregnancy to the point that they’re willing to sacrifice their desire for future children even though they’re not really entirely sure,” Clowse said.
Small, a maternal-fetal medicine specialist, treats women with high-risk pregnancies. At 18 weeks she often performs an ultrasound because it’s the best time to see if fetal organs are developing adequately and to identify serious birth defects. Since the Roe v. Wade ruling was overturned, her patients are increasingly asking how much time they have to make a decision about terminating a pregnancy if their lives are in danger or major birth defects are discovered that could severely compromise the child’s quality of life.
The constraint on the time limit permitted for abortion is an added stressor to an already difficult decision, she said.
Small said that the option of ending a pregnancy — one that she says patients never make lightly — needs to be available to individuals who need it and that the decision should be between a doctor and the patient, not legislators who do not understand pregnancy.
Doctors get into health care to help patients live the best lives they can, Clowse said, and, at times, that means talking about abortion with patients and helping them access it. With growing regulation, she and her colleagues are worried about their ability to continue to do that and the legal consequences it could bring in some states.
Another challenge physicians are facing come from laws that create exceptions for the life of the mother. Many in the general public may think that the risk is easy to define — either someone is dying or they aren’t — but doctors know it isn’t always clear. Gray knows physicians in Texas operating under strict abortion bans with narrow exceptions and are making challenging determinations about when the risk is high enough for medical interventions. Does the patient’s organs need to be failing? Does someone need to be hemorrhaging to the extent of needing a blood transfusion?
“Essentially, they were having to watch those patients until they were on the brink of a catastrophic outcome and then they could take care of them,” Gray said.
Small added that the United States already has a maternal health crisis and she is bracing for it to get worse. In 2020, according to the Centers for Disease Control and Prevention, the maternal mortality rate ticked up to 23.8 deaths per 100,000 live births from 20.1 deaths per 100,000 live births in 2019. For Black women, the rate was even higher at 55.3 deaths per 100,000 live births in 2020.
“It really is sad and disturbing that we are fighting so hard to decrease maternal mortality rates and yet we have conditions where people are wondering, ‘Can I intervene in this condition that usually is associated with maternal death, like an ectopic pregnancy?’” Small said.
Gray said restrictive abortion bans are creating a medical environment where physicians are offering worse care to patients.
More restrictions coming?
Abortion in North Carolina could be restricted further next year if Republicans gain two seats in the state Senate and three in the state House of Representatives to obtain a veto-proof supermajority. Some Republicans have already expressed a desire to pass more abortion restrictions but they have yet to do so because Gov. Cooper has been able to use his veto power to block such restrictions.
The state’s abortion opponents have vowed that Osteen’s ruling is “just the beginning.”
“We are going to work hard to get legislation passed which will protect as many unborn babies and their mothers as possible,” said Tami Fitzgerald, executive director of the NC Values Coalition, in a statement released after Osteen’s ruling.
But physicians retort that abortion bans have negative ramifications on pregnancy care.
“There’s this idea that a ban will make care safer for the patient – that’s absolutely not true at all,” Gray said. “In fact, it makes care less safe.”
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