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A unanimous three-judge panel in a federal appeals court upheld a lower-court ruling that North Carolina's ban on abortion after 20 weeks is unconstitutional, a blow to abortion opponents in one of many such cases currently percolating through federal courts.
Several pro-life organizations and more than a dozen Republican states supported North Carolina in the effort. The ruling may be appealed by North Carolina to the Supreme Court, which has already agreed to take on one major abortion case out of Mississippi in its next term. That one is on a 15-week abortion ban.
The lower court in the North Carolina case ruled that the 20-week threshold would make some pre-viability abortions illegal, which would be in violation of the landmark Supreme Court case Planned Parenthood v. Casey, it said.
North Carolina appealed, arguing that the abortion providers behind the suit did not have standing to bring it because the state didn't enforced its abortion laws in the past. But the court said that because there was no evidence the abortion providers had actually performed illegal abortions, "we cannot assume the State's acquiescence in violations of the law."
"Establishing standing does not require that a litigant fly as a canary into a coal mine before she may enforce her rights," the court said.
The court also added that because of the very salient debate around abortion – with several other states besides North Carolina recently implementing laws to limit the procedure – the state's non-enforcement argument was not credible.
"As a nation we remain deeply embroiled in debate over the legal status of abortion. While this conversation rages around us, this court cannot say that the threat of prosecution to abortion providers who violate the law is not credible," the ruling read. "Here, where North Carolina’s continued interest in regulating abortion remains vividly apparent… we cannot dismiss the threat of prosecution."
North Carolina's 20-week ban was implemented after the 1973 Supreme Court case Roe v. Wade, which would have made North Carolina's blanket abortion ban at the time unconstitutional without changes. The suit came after the North Carolina legislature adopted a handful of amendments in 2015 that extended the waiting period for abortions, imposed reporting requirements and more.
West Virginia Attorney General Patrick Morrisey, whose state was one of those that supported North Carolina in its defense of its law, said he is "disappointed" with the ruling.
"While we’re obviously disappointed by the court’s decision, we maintain our strong belief that life is precious and must be defended at every stage," he said in a statement responding to the ruling. "That includes safeguarding unborn children from pain, while also protecting the life of the mother. We will review the court’s decision and consider potential options."
"Today’s ruling is an important victory for our patients across North Carolina," Planned Parenthood South Atlantic President Jenny Black said in a statement. Her organization was one of the plaintiffs on the case.
"Abortion remains inaccessible for many North Carolinians, and we will continue to protect and expand access to this essential health care," she continued. "When people can make decisions about their pregnancies that are best for them, families thrive and we build communities where each of us can participate fully and with dignity. That is the vision that we are fighting for, and the court’s decision today brings us one step closer."
Pro-life groups, however, will be happy to focus their efforts on the Mississippi case before the Supreme Court, which could be the culmination of years of efforts by Republican state legislators and activists to get the tribunal to change its stance on abortion.
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"Across the nation, state lawmakers acting on the will of the people have introduced 536 pro-life bills aimed at humanizing our laws and challenging the radical status quo imposed by Roe," Marjorie Dannenfelser, the president of the pro-life Susan B. Anthony List, said when the court took up the case lase month. "It is time for the Supreme Court to catch up to scientific reality and the resulting consensus of the American people as expressed in elections and policy."
