Texas Abortion Law is Among Strictest in Country; What Does This Mean for North Carolina?
Texans protest Senate Bill 8, which bans abortions as early as 6 weeks into pregnancy and relies on private litigation for enforcement. Source: San Antonio Current
On September 1st, a law that is being described as the most restrictive abortion law in the United States went into effect in the state of Texas: Senate Bill 8. The new law bans abortions as early as 6 weeks into pregnancy and relies on private litigation for enforcement, a legal loophole evading the protection guaranteed in Roe v. Wade to a woman’s right to have an abortion by relegating enforcement of the law to private citizens, rather than the state itself. In a 5-4 decision, the United States Supreme Court opted to not block enforcement of the law.
The passing of Senate Bill 8 has become indicative of the unprecedented threat currently facing Roe v. Wade and women's reproduction rights. This threat has become even more pertinent as the Supreme Court announced on September 20th that they are taking up the Mississippi abortion ban case – revolving around a Mississippi abortion law which banned most abortions past 15 weeks – on December 1st, with the possible consequence of overturning Roe v. Wade.
These developments have many people both concerned and excited in wondering if their state’s legislatures will follow in Texas’ footsteps. The question remains to be asked then, just how likely is it that North Carolina will take similar steps against abortion?
Abortion law in the U.S and N.C
Understanding current North Carolina abortion law first requires an understanding of Roe v. Wade and other landmark decisions.
The landmark decision of Roe v. Wade was passed on January 22nd, 1973, and ordered that any woman, under the protection of the Fourteenth amendment and the right to privacy that it ensures, has the right to have an abortion as long as the fetus is not viable (as determined by a doctor). Viability refers to whether a fetus has the ability to survive outside of the womb. The court recognized this milestone as occurring around the 24-week mark, although it depends on each individual fetus, which is why viability must be determined by a doctor. This stipulation means that Roe v. Wade does not prevent state regulation of abortion amid the second trimester and the whole of the third trimester. However, Doe v. Bolton, passed the same day as Roe v. Wade, ruled that an abortion throughout any stage of pregnancy could not be restricted if the procedure was necessary due to reasons concerning maternal health. Moreover, Planned Parenthood v. Casey, decided on June 29th, 1992, clarifies that a state may prohibit post-viability abortion, but cannot put in place structures and mechanisms which interfere with a woman’s ability to get a pre-viable abortion.
These decisions nullified multiple states’ pre-existing laws, which either barred the practice of abortion altogether or had created unnecessary obstacles to deliberately make it more difficult to receive an abortion. Since the decision, conservative-majority states have made many new laws which pro-choice activists and lawmakers alike have viewed as being in clear violation of Roe. The state of North Carolina notoriously passed a post-viability ban law the same year Roe v. Wade was decided. The law would ban all abortions pass the 20-week mark of pregnancy except for reason of medical emergency and mandated a delay of 24 hours from the time a woman contacts her provider to the time she could receive the procedure. The law was recently amended in 2015 to narrow the scope of what constitutes a medical emergency and increase the mandatory delay time from 24 hour to 72 hours. An appellate court in June of 2021 upheld the decision to strike down the ban, but appeal is possible.
Will North Carolina follow suit?
Currently, North Carolina Republicans hold the majority in both the State House and the State Senate, meaning that the legislature is largely in favor of more restrictions on abortion. However, North Carolina’s current Governor Roy Cooper, a Democrat, has consistently vetoed Republican abortion bills throughout his term, thwarting the Republicans’ attempts in creating more restrictions. The development in Texas, notably, has given North Carolina Republicans hope, especially since they oversee the remapping of district lines according to new census data this year. The manner in which Republicans choose to draw the new political districts will be decisive in whether North Carolina will follow Texas’ lead in terms of crafting restrictive abortion laws, as redistricting could aid in Republicans regaining a supermajority in 2022. Such a supermajority would give state Republicans the power to override any of Gov.Cooper’s vetoes. meaning new abortion restrictions may come after the 2022 midterm elections. This scenario, in conjunction with the uncertain fate of Roe v. Wade in light of the upcoming Supreme Court deliberation, creates the potential for a barrage of new restrictions on abortion in North Carolina.
The possibility of such change leaves the entire state of North Carolina on edge. Some are nervous, and others are more excited. However one feels about this issue, the coming months will see some of the most significant battles to date in the fight for reproduction rights in the United States. This means that it is likely many protests will erupt throughout the country and state as we near the time the Supreme Court will hear the Mississippi abortion law case, deliberate, and eventually make their final decision.