noting that “even laws that nominally impose only civil consequences warrant a ‘relatively strict test’ for vagueness if the law is ‘quasi-criminal’ and has a stigmatizing effect”
How later courts described this case
- noting that “even laws that nominally impose only civil consequences warrant a ‘relatively strict test’ for vagueness if the law is ‘quasi-criminal’ and has a stigmatizing effect”
- holding that there is no fundamental right to procure an abortion
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
PLANNED PARENTHOOD SOUTH )
ATLANTIC, et al., )
)
Plaintiffs, )
)
v. ) 1:23-CV-480
)
JOSHUA STEIN, et al., )
)
Defendants, )
)
and )
)
PHILIP E. BERGER, et al., )
)
Intervenor-Defendants. )
MEMORANDUM OPINION and ORDER
Catherine C. Eagles, Chief District Judge.
Following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health
Org., 597 U.S. 215 (2022), the North Carolina General Assembly overhauled the state’s
law on abortion in 2023. That law, as amended, prohibited abortions in many situations,
otherwise reduced the availability of abortions, and added many more regulatory,
medical, and procedural rules and requirements for an abortion to be lawful. It imposed
civil, quasi-criminal, and, for many of its provisions, criminal sanctions and penalties for
its violation.
The plaintiffs, Planned Parenthood South Atlantic (PPSAT) and Dr. Beverly Gray,
challenged the constitutionality of various provisions of the Act. The Court refused to
enjoin the new law in its entirety but entered a preliminary injunction enjoining
enforcement of two provisions: one requiring documentation of the existence or probable
existence of an intrauterine pregnancy and another requiring surgical abortions after 12
weeks of pregnancy be performed in a hospital.
The parties agree that the material facts are undisputed. They filed and fully
briefed cross-motions for summary judgment, which have been carefully considered.
The provision requiring providers to document the existence or probable existence
of an intrauterine pregnancy before a medical abortion is unconstitutionally vague. The
requirement does not give medical providers sufficient notice of the required conduct,
and it does not include sufficient standards to prevent arbitrary and discriminatory
enforcement. Therefore, the statute violates the plaintiffs’ due process rights. The
plaintiffs’ motion for summary judgment as to the intrauterine pregnancy provision will
be granted, and the intervenors’ cross-motion for summary judgment will be denied.
The requirement that surgical abortions after 12 weeks of pregnancy be performed
in a hospital does not violate the plaintiffs’ constitutional rights to equal protection or due
process. The plaintiffs have offered credible and largely uncontroverted medical and
scientific evidence that this requirement is unnecessary to protect maternal health and
safety and will unnecessarily make such abortions more dangerous for many women and
more expensive. But since the Supreme Court’s decision in Dobbs, there is no
fundamental right to abortion, see 597 U.S. at 300, and the General Assembly need only
offer rational speculation for its legislative decisions regulating abortion. The intervenors
have offered such speculation, and the plaintiffs have not negated every conceivable basis
the General Assembly may have had for enacting the hospitalization requirement. The
intervenors’ motion for summary judgment as to the hospitalization requirement will be
granted, and the plaintiffs’ cross-motion will be denied.
I. Procedural History
In May 2023, the North Carolina General Assembly enacted Senate Bill 20,
entitled “An Act to Make Various Changes to Health Care Laws and to Appropriate
Funds for Health Care Programs.” Doc. 1-1. Among other things, the Act significantly
restricted access to abortions by changing and adding to the requirements of Chapter 90,
Article 1i of the North Carolina General Statutes where the law governing abortion is
codified.
Soon thereafter, the plaintiffs filed a verified complaint on behalf of themselves
and their patients seeking abortions and sought a temporary restraining order to keep the
Act from going into effect on July 1, 2023. Doc. 1. They raised several constitutional
challenges. Id. at ¶¶ 77–87.
Philip E. Berger, President Pro Tempore of the North Carolina Senate, and
Timothy K. Moore, Speaker of the North Carolina House of Representatives, moved to
intervene as defendants on behalf of the General Assembly. Doc. 17. The Court granted
the motion. Text Order 06/24/2023; Minute Entry 06/28/2023; Doc. 32.
The General Assembly soon passed an amended version of the Act, largely
directed to resolving some of the ambiguities in the original Act, and the amended
version was signed into law on June 29, 2023. Doc. 42 at ¶ 6. The next day, this Court
denied the motion to enjoin enforcement of the Act as a whole. Doc. 31. But based on
vagueness concerns, the Court granted the motion for a temporary restraining order
prohibiting enforcement of the intrauterine pregnancy provision that required a
“physician prescribing, administering, or dispensing an abortion-inducing drug” to
“[d]ocument in the woman’s medical chart the . . . existence of an intrauterine
pregnancy.” Id. at pp. 8–9 ¶ 1.1 The Court refused to issue a temporary restraining order
as to the hospitalization requirement, finding it unnecessary since the provision would not
go into effect until October 1, 2023. Id. at p. 9 ¶ 2.
The parties thereafter jointly moved to extend the temporary restraining order
pending some expedited discovery and a ruling on the preliminary injunction motion.
Doc. 33. The Court granted the motion, Doc. 35, and set a schedule for expedited
discovery, briefing, and a hearing. Doc. 37.
The plaintiffs filed an amended verified complaint in light of the amendments to
the Act passed in late June 2023. Doc. 42.2 For the same reason, they filed an amended
motion for a preliminary injunction. Doc. 48. They also filed four declarations under
oath in support of their motion, Doc. 49-1; Doc. 49-2; Doc. 69-1; Doc. 69-2, deposition
testimony, Doc. 74-1; Doc. 74-2; Doc. 74-3; Doc. 74-4; other exhibits, and briefs. The
North Carolina Attorney General agreed with the plaintiffs, Doc. 63, and other defendants
1 All page citations are to the pagination appended by the CM-ECF system.
2 In the amended complaint, Doc. 42 at ¶¶ 82–86, the plaintiffs did not make the same broad
constitutional challenges to the changes to the Abortion Law that they made in their original
complaint. Doc. 1 at ¶¶ 77–87. Those challenges are no longer before the Court, as the amended
complaint is the operative complaint, and the Court makes no decision on any of the claims
originally asserted.
took no position. Doc. 56; Doc. 58; Doc. 61; Doc. 62. The intervenors defended the
constitutionality of the provisions at issue, and in opposition to the motion filed two
declarations under oath, Doc. 65-1; Doc. 65-3, various exhibits, deposition testimony,
Doc. 75-2; Doc. 75-3, and briefs.
After a hearing, the Court granted the plaintiffs’ amended motion for a preliminary
injunction and enjoined two provisions of the law. Doc. 80 at pp. 33–34 ¶¶ 1–2. The
Court found that the plaintiffs were likely to succeed on their claim that the intrauterine
pregnancy (IUP) provision was unconstitutionally vague and on their claim that the
requirement that surgical abortions after 12 weeks be performed in a hospital violated the
equal protection clause. Id. at pp. 32–33.
After additional time for discovery, the plaintiffs filed a motion for summary
judgment, Doc. 93, and the intervenors filed a cross-motion for summary judgment. Doc.
97. The plaintiffs filed five declarations under oath in support of their motion, Doc. 94-1;
Doc. 94-2; Doc. 100-1; Doc. 100-2; Doc. 100-3, deposition testimony, Doc. 94-3; Doc.
94-4; Doc. 94-5; other exhibits, and briefs. The intervenors filed declarations under oath
in support of their motion, Doc. 97-2; Doc. 97-3; Doc. 97-4; other exhibits, Doc. 97-1;
Doc. 97-5; Doc. 97-6; Doc. 97-7; and briefs. The Attorney General filed a response and
reply in support of the plaintiffs’ position, Doc. 99; Doc. 104, and the other defendants
did not file any briefs. The Court held a hearing on June 5, 2024. Doc. 101.
II. The Act
The Act defines “abortion” as a “surgical abortion or a medical abortion,” N.C.
Gen. Stat. § 90-21.81(1), and provides specific definitions of those phrases. § 90-
21.81(4e) (defining medical abortion), (9b) (defining surgical abortion). The Act
provides that if extensive regulatory, procedural, and medical requirements, see generally
§ 90-21.80 et seq. are met, it is not unlawful to procure or cause an abortion during the
first 12 weeks of pregnancy. § 90-21.81B(2).
As relevant here, the Act requires health care providers to “[d]ocument in the
woman’s medical chart the probable gestational age and existence of an intrauterine
pregnancy” before administering an “abortion-inducing drug.” § 90-21.83B(a)(7). An
abortion-inducing drug is statutorily defined, § 90-21.81(1a), and includes drugs such as
mifepristone and misoprostol. Id.
The Act makes it “unlawful after the twelfth week of a woman’s pregnancy to
procure or cause a miscarriage or abortion” in North Carolina. § 90-21.81A. The Act
does, however, provide narrow exceptions for “surgical abortions” for specified periods
of time after 12 weeks and for specified reasons. See discussion infra at 21. Surgical
abortions up to 12 weeks can be done in a clinic, § 90-21.81B(2), but if done after 12
weeks under one of the authorized exceptions, the procedure must be performed in a
hospital. §§ 90-21.81B(3), (4); 90-21.82A(c).
If a physician violates any provision of Article 1i, including either provision at
issue here, that physician “shall be subject to discipline by the North Carolina Medical
Board,” and if a licensed health care provider violates any provision of the Article, it
“shall be subject to discipline under their respective licensing agency or board.” § 90-
21.88A. This statutory provision does not provide a state of mind or intent standard.
If a person performs an abortion in knowing or reckless violation of any provision
in Article 1i, that person is subject to a civil action for damages and attorneys’ fees.
§§ 90-21.88(a), (c). Physicians who perform abortions are subject to these penalties.
North Carolina provides criminal penalties for violation of its abortion law. See
N.C. Gen. Stat. § 14-44 et seq. If a person administers a drug to a pregnant woman or
“use[s] any instrument” with the intent “to procure the miscarriage of such woman,”
outside the narrow exceptions in § 90-21.81B, the person is subject to prosecution for a
Class I felony. § 14-45. Outside the narrow exceptions, §§ 90-21.81B(3), (4), it is
“unlawful after the twelfth week of a woman’s pregnancy to procure or cause a
miscarriage or abortion.” § 90-21.81A(a). If a physician provides a surgical abortion
after 12 weeks and the exceptions in § 90-21.81B are not applicable or the physician does
not comply with other requirements necessary for the procedure to be lawful, the
physician faces prosecution for a Class H felony. § 14-44. If a person “unlawfully
causes the death of an unborn child” by “willfully and maliciously commit[ting] an act
with the intent to cause the death of the unborn child,” the person can be charged with a
Class A felony, facing life in prison without parole. §§ 14-23.2(a)(1), (b)(1).
III. Summary Judgment Standard
A court “shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” FED. R. CIV. P. 56(a). “When faced with cross-motions for summary judgment,
the court must review each motion separately on its own merits to determine whether
either of the parties deserves judgment as a matter of law.” Rossignol v. Voorhaar, 316
F.3d 516, 523 (4th Cir. 2003) (cleaned up); see also Coal. for TJ v. Fairfax Cnty. Sch. Bd.,
68 F.4th 864, 878 (4th Cir. 2023).
Here, all the material facts are undisputed. While there are disputed questions of
fact, some of which will be discussed, none are material. Therefore, entry of summary
judgment is appropriate.
IV. Intrauterine Pregnancy Provision
Subject to many restrictions and requirements, the Act allows a “medical abortion”
up to 12 weeks of pregnancy. § 90-21.81B(2). The statute defines a medical abortion as
“[t]he use of any medicine, drug, or other substance intentionally to terminate the
pregnancy of a woman known to be pregnant,” with narrow exceptions not relevant here.
§ 90-21.81(4e).
Among the conditions and restrictions, the Act requires that before providing an
abortion-inducing drug, a physician shall “[d]ocument in the woman’s medical chart the
probable gestational age and existence of an intrauterine pregnancy.” § 90-21.83B(a)(7).
The plaintiffs contend that the IUP provision violates the Fourteenth Amendment’s Due
Process Clause both because it does not have a rational basis and because it is vague.
Doc. 94 at 16–24.
Specifically, the plaintiffs say that the requirement to determine and document
“the probable gestational age and existence of an intrauterine pregnancy,” § 90-
21.83B(a)(7), has no rational relationship to patient safety because it prohibits medical
abortions when they are safest early in pregnancy and does not facilitate prompt
screening and treatment for ectopic pregnancy. Doc. 94 at 21. The plaintiffs also say that
the requirement does not provide clear standards by which the provider is to make such a
determination, causing serious notice problems and raising the risk of arbitrary
enforcement. Id. at 19. The intervenors contend that medical practitioners understand
the requirement, Doc. 98 at 21, and that the requirement protects the health of women
with ectopic pregnancies. Id. at 24.
A. Undisputed Facts
An intrauterine pregnancy occurs when a fertilized egg implants and grows inside
the uterus. Doc. 65-3 at ¶ 60. An ectopic pregnancy occurs when a fertilized egg
implants and grows outside of the uterus. Doc. 49-1 at ¶ 52 n.36; Doc. 65-3 at ¶ 58.
After five or six weeks of pregnancy, the embryo can be seen on ultrasound if it is
in the uterus, but up until that point it is impossible to detect an intrauterine embryo by
ultrasound. Doc. 65-1 at ¶ 239; Doc. 65-3 at ¶ 55; Doc. 74-1 at 146; Doc. 49-1 at ¶ 49.
Blood tests are available to provide additional information about whether the pregnancy
is intrauterine or ectopic, but they require interpretation and are not conclusive yes/no
tests at this early stage of pregnancy. Doc. 65-1 at ¶ 254.
There are five general categories of pregnancy location. Doc. 94-2 at ¶ 43; Doc.
97-2 at ¶ 219. These include: 1) “definite intrauterine pregnancy” when the gestational
sac and yolk sac and/or embryo are visible in the uterus; 2) “probable intrauterine
pregnancy” when there is a likely gestational sac but no yolk sac visible in the uterus; 3)
“pregnancy of unknown location” when there is no intrauterine or extrauterine pregnancy
visible but the patient has a positive pregnancy test; 4) “probable ectopic pregnancy”
when there is an inhomogeneous adnexal mass or extrauterine sac-like structure; and 5)
“ectopic pregnancy” when there is an extrauterine gestational sac with yolk sac or
embryo visible. Doc. 94-2 at ¶ 43; see also Doc. 75-3 at 19; Doc. 74-2 at 112; Doc. 97-2
at ¶ 219. Ectopic pregnancies can be difficult to diagnose. Doc. 65-1 at ¶ 254.
An ectopic pregnancy cannot grow normally, and most of these embryos die. Doc.
65-3 at ¶ 58. If left untreated and the fallopian tube ruptures, the resulting internal
bleeding can threaten the life of the woman. Id.; Doc. 75-2 at 16. Medical abortion is
contraindicated for ectopic pregnancies because it is ineffective for treating them, since
ectopic pregnancies occur outside the uterine cavity. Doc. 65-2 at p. 5 ¶ 4, p. 7 ¶ 5.4;
Doc. 69-2 at ¶ 11; Doc. 74-1 at 101. Ectopic pregnancy accounts for approximately two
percent of all pregnancies. Doc. 65-3 at ¶ 58; Doc. 74-2 at 113.
The plaintiffs offer patients what they call “medication abortions” that fall within
the statutory definition of a “medical abortion.” Doc. 94-1 at p. 7 ¶ 11. Medical abortion
typically involves a two-step, two medication process: a dose of mifepristone followed
24 to 48 hours later by a dose of misoprostol. Id. at p. 9 ¶ 18; Doc. 49-2 at ¶ 21.
Together these medications stop the development of the pregnancy and cause uterine
contractions that empty the uterus. Doc. 49-1 at p. 9 ¶ 17; Doc. 49-2 at ¶ 21.
The 2023 label approved by the U.S. Food and Drug Administration for the
medical abortion drug mifepristone (Mifeprex) states that its use is “contraindicated” for
“[c]onfirmed or suspected ectopic pregnancy,” Doc. 65-2 at p. 5 ¶ 4, and, in the “Warning
and Precautions” summary, it says, with a reference to § 5.4 of the label, “Ectopic
pregnancy: Exclude before treatment.” Id. at p. 2. Section 5.4 of the label states that the
drug is “contraindicated in patients with a confirmed or suspected ectopic pregnancy
because [it] is not effective for terminating ectopic pregnancies.” Id. at p. 7 ¶ 5.4. It
further cautions that “[h]ealthcare providers should remain alert to the possibility that a
patient who is undergoing a medical abortion could have an undiagnosed ectopic
pregnancy because some of the expected symptoms experienced with a medical abortion
(abdominal pain, uterine bleeding) may be similar to those of a ruptured ectopic
pregnancy.” Id. The FDA has reported that 97 women have been diagnosed with ectopic
pregnancies during medical abortion, with two deaths reported from ruptured ectopic
pregnancy, but the record does not include the timeframe over which these complications
occurred. Doc. 65-1 at ¶ 248.
A patient with an ectopic pregnancy who takes a medical abortion drug will not be
directly harmed by the medication, and the medication itself does not exacerbate or
increase the risk of complications from ectopic pregnancy. Doc. 69-1 at ¶ 50; Doc. 69-2
at ¶ 11; Doc. 74-2 at 156; Doc. 74-3 at 144 (medical abortion cannot cause an ectopic
pregnancy to rupture). However, some the symptoms of a ruptured ectopic pregnancy
may be similar to the expected symptoms resulting from a successful medical abortion.
Doc. 65-2 at p. 7 ¶ 5.4.
When an intrauterine pregnancy cannot be confirmed by ultrasound, PPSAT’s
current medical protocol screens for risk of ectopic pregnancy through a set of questions
about the patient’s medical history and current symptoms. Doc. 49-1 at ¶ 52. Providers
evaluate known risk factors during the screening, such as symptoms of pain and bleeding,
history of ectopic pregnancies, past surgery on the fallopian tube, and presence of pelvic
inflammatory disease. Id. at ¶ 52 n.36. If the initial screening indicates the patient is at
high risk of ectopic pregnancy, the plaintiffs refer them to an emergency care provider.
Id. at ¶ 52. But if the medical screening establishes that the risk of ectopic pregnancy is
low and if the patient consents, the medical abortion begins; the provider simultaneously
conducts further blood work to help determine if the pregnancy is intrauterine or ectopic.
Id. at ¶ 54. Following the FDA-approved mifepristone label instruction to remain alert to
ectopic pregnancy, the plaintiffs provide these patients with a counseling form that
explains the risk of ectopic pregnancy, outlines its symptoms, and instructs patients to
“call us right away” if they experience any of the symptoms. Doc. 74-15. The blood
work test results can take up to 24 hours to receive, Doc. 49-1 at ¶ 54, and if the results
indicate a risk of ectopic pregnancy, the provider follows up with the patient. Id. at ¶ 55.
B. Substantive Due Process
The plaintiffs contend that this provision violates their substantive due process
rights because it has no rational basis. Doc. 42 at ¶ 85. But the undisputed evidence
shows otherwise. Because the General Assembly could have rationally speculated that
the IUP provision would protect maternal health by reducing the risk of unidentified
ectopic pregnancies, the provision survives rational basis review.
The Due Process Clause of the Fourteenth Amendment prevents a state from
“depriv[ing] any person of life, liberty, or property, without due process of law.” U.S.
CONST. amend. XIV, § 1. This guarantee encompasses both procedural and substantive
protections. See Kelley v. Johnson, 425 U.S. 238, 244 (1976). When a law or regulation
does not implicate a fundamental right, as here, then courts consider a substantive due
process challenge under rational basis review. See Doe v. Settle, 24 F.4th 932, 953 (4th
Cir. 2022).3
Under rational basis, the most lenient tier of review, courts presume the validity of
state laws, see City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985), and
the plaintiff must “negative every conceivable basis which might support it.”
Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973). Moreover, under
this standard, the law does not require the state to make any showing or present any
evidence, see Settle, 24 F.4th at 943, and courts accept the government’s “rational
speculation” linking the regulation to a legitimate purpose, even “unsupported by
evidence or empirical data.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 315 (1993).
“All that is needed is an imperfect fit between a plausible reason and some legitimate
end.” Settle, 24 F.4th at 944.
Here, the plaintiffs have not negated every conceivable basis the General
Assembly may have had for enacting the IUP provision. In the 2023 label approved for
the medical abortion drug mifepristone, the FDA says that ectopic pregnancy should be
“exclude[d] before treatment.” Doc. 65-2 at p. 2. It further cautions that “some of the
expected symptoms experienced with a medical abortion (abdominal pain, uterine
bleeding) may be similar to those of a ruptured ectopic pregnancy.” Id. at p. 7 ¶ 5.4. The
3 “Substantive due process analysis must begin with a careful description of the asserted
right.” Reno v. Flores, 507 U.S. 292, 302 (1993) (cleaned up); see Dep’t of State v. Muñoz, 144
S. Ct. 1812, 1822 (2024). Here, the plaintiffs have not clearly identified the asserted right. But
they have made no clear argument that any fundamental right is implicated. See Dobbs, 597 U.S.
at 300 (holding that there is no fundamental right to procure an abortion). Therefore, rational
basis review is appropriate.
IUP provision arguably mitigates the risk that a person with an ectopic pregnancy will
obtain an ineffective medication abortion, confuse the symptoms of that abortion with
what is actually a ruptured ectopic pregnancy, and fail to seek timely medical care. The
requirement plausibly protects maternal health and safety.
The plaintiffs say that the risk of confusing the side effects of medical abortion
and symptoms of a ruptured ectopic pregnancy is low, especially because they educate
patients about the symptoms and monitor them closely. Doc. 94 at 22–23. Their
evidence supports this contention and is largely uncontradicted. But “a legislative choice
is not subject to courtroom fact-finding,” Beach Commc’ns, 508 U.S. at 315, nor is it the
responsibility or role of the courts to replace the judgment of the legislature. See Settle,
24 F.4th at 943–44. Here, the General Assembly may have rationally speculated that the
IUP provision would protect maternal health by reducing the risk that a few patients
might mistake the side effects of a medical abortion with a ruptured ectopic pregnancy
and fail to seek medical care quickly. Beach Commc’ns, 508 U.S. at 315.
There is no fundamental right at stake here, see Dobbs, 597 U.S. at 300, and
rational basis review applies. The plaintiffs have not negated every conceivable basis the
General Assembly may have had for enacting the IUP determination requirement.
C. Vagueness
“It is a basic principle of due process that an enactment is void for vagueness if its
prohibitions are not clearly defined.” Grayned v. City of Rockford, 408 U.S. 104, 108
(1972). “To survive a vagueness challenge, a statute must give a person of ordinary
intelligence adequate notice of what conduct is prohibited and must include sufficient
standards to prevent arbitrary and discriminatory enforcement.” Manning v. Caldwell for
City of Roanoke, 930 F.3d 264, 272 (4th Cir. 2019) (en banc); see also Sessions v.
Dimaya, 584 U.S. 148, 155–56 (2018).
In evaluating a vagueness challenge, courts assess whether regulated parties
“know what is required of them so they may act accordingly” and whether a statute is
sufficiently precise “so that those enforcing the law do not act in an arbitrary or
discriminatory way.” FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012);
Grayned, 408 U.S. at 108. The Due Process Clause requires that “a fair warning . . . be
given to the world in language that the common world would understand, of what the law
intends to do if a certain line is passed.” Bittner v. United States, 598 U.S. 85, 102 (2023)
(quoting McBoyle v. United States, 283 U.S. 25, 27 (1931)). While the Constitution does
not require “mathematical certainty from our language,” it does prohibit statutory
language so unclear about prohibited conduct that it “may trap the innocent by not
providing fair warning” or so standardless that it allows “arbitrary and discriminatory
enforcement.” Greenville Women’s Clinic v. Comm’r, S.C. Dep’t of Health & Env’t, 317
F.3d 357, 366 (4th Cir. 2002) (quoting Grayned, 408 U.S. at 108, 110).
As everyone acknowledges, implicit in the challenged requirement that a provider
“[d]ocument in the woman’s medical chart the probable gestational age and existence of
an intrauterine pregnancy,” § 90-21.83B(a)(7), is a requirement that the provider
determine that the pregnancy is intrauterine; that is, it is not ectopic. Yet this implicit
requirement does not provide clear standards by which the provider is to make such a
determination.
First, it is not clear whether the word “probable” modifies only “gestational age”
or whether it modifies both “gestational age” and “existence of an intrauterine
pregnancy.” In other words, it is not clear if the provider must “document” the “probable
gestational age” and the “probable existence of an intrauterine pregnancy,” or whether
the provider must document the “probable gestational age” and the “existence of an IUP.”
Interpreting the provision to require a provider to document the “probable
existence of an intrauterine pregnancy,” as the Attorney General and Intervenors contend
is appropriate, see Doc. 95 at 115–16; Doc. 99 at 21; Doc. 98 at 20 n.4, does not solve the
vagueness problem. There is no definition of “probable existence of an intrauterine
pregnancy,” and the undisputed evidence shows it can reasonably be read at least two
ways.
A physician might reasonably read the requirement to find “probable existence of
an intrauterine pregnancy” as consistent with PPSAT’s established medical protocol,
which allows medical abortion before the pregnancy can be seen on an ultrasound if
screening about the patient’s medical history and symptoms permit a physician to
determine that an ectopic pregnancy is unlikely. Doc. 49-1 at ¶¶ 51–54, Doc. 49-2 at
¶ 47. If an ectopic pregnancy is unlikely, then an IUP, the only other alternative, is
likely, and the common understanding of the word “probable” means likely but not
certain.4 Or, as the intervenors contend, a provider could understand the statutory phrase
4 A standard dictionary states that probable means “supported by evidence strong enough to
establish presumption but not proof.” Probable, MERRIAM-WEBSTER, https://www.merriam-
webster.com/dictionary/probable (last visited July 23, 2024).
“probable existence of an intrauterine pregnancy” to have the same meaning as “probable
intrauterine pregnancy,” Doc. 105 at 7, a term well-understood in the relevant medical
community to mean that “there is a likely gestational sac (intrauterine echogenic sac-like
structure), but no yolk sac, visible in the uterus.” Doc. 94-2 at ¶ 43. Thus, there are at
least two different reasonable interpretations of the phrase “probable existence of an
intrauterine pregnancy.”
The risk of arbitrary and uneven enforcement is also a factor, FCC, 567 U.S. at
253, and it is high here. Law enforcement officials may not be familiar with the medical
community’s understanding of the term “probable intrauterine pregnancy.” See supra at
9. The District Attorney defendants, all of whom are elected law enforcement officials in
North Carolina, and the North Carolina Medical Board and Board of Nursing defendants
have remained silent on the meaning of “probable existence of an intrauterine
pregnancy,” and on whether criminal penalties are available if the provision is violated.
See discussion infra at 20. Elected officials hold wide-ranging moral and political
opinions about abortion, and the political environment in a particular jurisdiction might
also affect how law enforcement officials evaluate their role and responsibilities under
this vague provision. The due process clause requires statutes to be sufficiently precise
“so that those enforcing the law do not act in an arbitrary or discriminatory way.” FCC,
567 U.S. at 253. That is not the case with the IUP provision.
The intervenors contend that because there is a standard medical definition of
“probable intrauterine pregnancy,” the statute is not vague. Doc. 105 at 7–8. First,
nothing in the statute indicates that the General Assembly meant for the statutory phrase
“probable existence of an intrauterine pregnancy” to carry the same meaning as the
medical term “probable intrauterine pregnancy,” Doc. 94-2 at ¶ 43, nor is there any
evidence that it would be so interpreted by the North Carolina Medical Board. Second,
and similarly, there is no language in the Act giving a provider notice that the medical
category “pregnancy of unknown location” could not fall within the meaning of
“probable existence of an intrauterine pregnancy;” as discussed supra at 11–12, there are
ways other than an ultrasound for a provider to determine that an ectopic pregnancy is
unlikely and thus that an intrauterine pregnancy is “probable.” Finally, there is a real
possibility physicians like Dr. Gray could face criminal charges, since the provision will
be interpreted by persons outside of the medical profession and unfamiliar with medical
terminology when they assess whether to bring criminal charges against persons who
provide medical abortions.
The intervenors also contend that the IUP provision is not vague because when
viewed as a whole, it has a clear meaning. Doc. 98 at 22–23 (citing Doe v. Cooper, 842
F.3d 833, 842 (4th Cir. 2016)). In Cooper, the court stated that “statutes that require a
person to conform his conduct to an imprecise but comprehensible normative standard”
are constitutional if they “apply without question to certain activities even though their
application in marginal situations may be a close question,” and that only statutes that
specify “no standard of conduct” are unconstitutionally vague. Cooper, 842 F.3d at 842
(cleaned up). Applying that framework, the court held that a statute prohibiting
registered sex offenders from being within 300-feet of certain locations was
unconstitutionally vague because those locations were not defined and a reasonable
person could not determine their meaning. Id. at 838, 843.
The vagueness problem here is at least as acute as in Cooper. The IUP provision
not only leaves a medical provider to guess whether she must document the “existence of
an intrauterine pregnancy” or “probable existence of an intrauterine pregnancy,” but it
never defines either term. There are at least two reasonable interpretations, as discussed
supra at 16–17. Because a reasonable person, whether a medical provider or a law
enforcement officer, cannot reasonably determine the meaning of the provision, and
because it is subject to arbitrary enforcement, it is unconstitutionally vague.
The intervenors also contend that physicians like Dr. Gray are only subject to civil
and administrative penalties and thus that this degree of vagueness is tolerable. Doc. 98
at 17–18. As the intervenors correctly say, id., the due process clause requires less clarity
from “purely civil statutes” than criminal statutes “because the consequences of
imprecision are qualitatively less severe.” Manning, 930 F.3d at 272; see Carolina Youth
Action Project v. Wilson, 60 F.4th 770, 781 (4th Cir. 2023).
But this argument ignores the fact that significant administrative penalties like
license revocations, which are unquestionably a possibility here, are quasi-criminal. See
In re Gillespie, No. 23-CV-1819, 2023 WL 7548181, at *1 (4th Cir. Nov. 14, 2023)
(unpublished) (noting that disciplinary proceedings against an attorney are “of a quasi-
criminal nature” and citing In re Ruffalo, 390 U.S. 544, 551 (1968)); Women’s Med. Ctr.
of Nw. Hous. v. Bell, 248 F.3d 411, 422 (5th Cir. 2001). Because the Act provides that a
physician or health care provider who violates the Act is subject to discipline by the
North Carolina Medical Board or other “respective licensing agency or board,” § 90-
21.88A, the standard of review is stricter than that imposed on purely civil statutes. See
Manning, 930 F.3d at 273 (noting that “even laws that nominally impose only civil
consequences warrant a ‘relatively strict test’ for vagueness if the law is ‘quasi-criminal’
and has a stigmatizing effect”); Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc.,
455 U.S. 489, 498–99 (“prohibitory and stigmatizing effect” of admittedly “quasi-
criminal” ordinance relevant to the vagueness analysis).5
The argument also ignores the real possibility that law enforcement officers and
prosecutors could reasonably read the Abortion Law as authorizing criminal charges
against a doctor who provides a medical abortion without the requisite degree of
certainty, whatever that degree is, over whether there is the existence or probable
existence of an intrauterine pregnancy. Indeed, early in the preliminary injunction
proceedings, the intervenors interpreted the law to provide criminal penalties, Doc. 65 at
18, and that is how the Attorney General maintains the Abortion Law could be
interpreted. Doc. 99 at 22–23; Doc. 104 at 12. The District Attorney defendants have
remained silent on this issue. The fact that it is not clear whether criminal penalties apply
compounds the vagueness problem.6
5 Plumer v. Maryland, cited by the intervenors, see Doc. 98 at 19, involved driver’s licenses,
not professional medical licenses. 915 F.2d 927, 931 (4th Cir. 1990).
6 The intervenors also contend that the “lesser civil and licensing penalties supersede its
criminal statutes” because § 90-21.81B provides that medical abortion is lawful during the first
12 weeks of pregnancy “[n]otwithstanding North Carolina’s criminal penalties for abortion.”
Doc. 98 at 18–19. But the Intervenors overlook that § 90-21.81B says more; abortion is legal
during the first twelve weeks “[n]otwithstanding any of the provisions of [North Carolina’s
The IUP provision in the Act does not withstand either a strict or relatively strict
review and thus is unconstitutionally vague. The General Assembly is not required to
draft its statutes with “mathematical certainty,” Greenville Women’s Clinic, 317 F.3d at
366, but the IUP provision’s high degree of ambiguity does not give providers with
sufficient notice of the required conduct. See Manning, 930 F.3d at 272. And providers
are not the only ones left guessing about how to comply with the law; law enforcement
officials also face those uncertainties, and the plaintiffs and other providers run the real
risk that those officials will enforce the provision “in an arbitrary or discriminatory way.”
FCC, 567 U.S. at 253.
The Court will grant the plaintiffs’ motion for summary judgment on their claim
that the IUP provision is unconstitutionally vague in violation of the due process clause.
The intervenors’ motion for summary judgment will be denied.
V. Hospitalization Requirement
Up to the twelfth week of pregnancy, and subject to numerous requirements and
restrictions, a woman can obtain a medical abortion or a surgical abortion in a doctor’s
office or clinic. § 90-21.81B(2); see generally § 90-21.80 et seq. After the twelfth week
of pregnancy, a woman cannot obtain a medical abortion. § 90-21.81B(2). If she is
pregnant as a result of rape or incest or if there exists a “life-limiting anomaly,” and
criminal penalties for abortion], and subject to the provisions of this Article.” § 90-21.81B
(emphasis added). Thus, as the Attorney General points out, the Act could be read to mean that a
person who provides a medical abortion in a way that is inconsistent with the Act, including its
IUP documentation requirement, could be subject to criminal penalties for an unlawful abortion.
See Doc. 104 at 12.
before specified weeks of pregnancy pass, she may be able to obtain a surgical abortion
after the twelfth week, but only in a hospital. §§ 90-21.81B(3), (4); 90-21.82A(c); N.C.
Gen. Stat. § 131E-176(13) (defining “hospital”). The statute defines a “[s]urgical
abortion” as “[t]he use or prescription of any instrument or device intentionally to
terminate the pregnancy of a woman known to be pregnant,” unless the intent of the use
of the device is to:
a. Increase the probability of a live birth;
b. Preserve the life or health of the child;
c. Remove a dead, unborn child who died as the result of (i) natural
causes in utero, (ii) accidental trauma, or (iii) a criminal assault on the
pregnant woman or her unborn child which causes the premature
termination of the pregnancy;
d. Remove an ectopic pregnancy.
§ 90-21.81(9b). The plaintiffs contend that the hospitalization requirement violates the
Equal Protection and Due Process Clauses of the Fourteenth Amendment. Doc. 42 at
¶¶ 85–86.7
A. Undisputed Facts
There are two methods of abortion that use an instrument intentionally to
terminate the pregnancy of a woman known to be pregnant and thus fall within the
statutory definition of a surgical abortion: aspiration, which medically can typically be
performed up to approximately 14 weeks of pregnancy, and dilation and evacuation
7 The plaintiffs have abandoned their claim, Doc. 42 at ¶ 83, that the hospitalization
requirement violates the due process clause for vagueness, Doc. 100 at 24 n.10, but they have not
abandoned their substantive due process claim. Id. at 17 n.5; see infra at 30.
(D&E), which is available after approximately 14 weeks of pregnancy. Doc. 49-1 at
¶¶ 15, 21, 25.
The same two procedures are used for miscarriage management. Id. at ¶¶ 24, 28,
41 (undisputed testimony that surgical abortion procedures are “identical” to procedures
for miscarriage management); Doc. 49-2 at ¶ 24. Miscarriage management is required
when a person’s body does not naturally expel the pregnancy tissue after miscarriage or
when a pregnancy stops growing, as evident from the absence of embryonic or fetal
cardiac activity. Id. at 10 n.7. When so used, these two procedures are not statutorily
prohibited or unlawful because the purpose of the procedure is to “[r]emove a dead,
unborn child who died.” § 90-21.81(9b)(c).
Whether performing an aspiration or D&E procedure for abortion or for
miscarriage management, physicians use the same equipment and clinical techniques.
Doc. 94-1 at p. 13 ¶ 25, p. 15 ¶ 29; Doc. 94-3 at 27, 82. The placement of the medical
instruments within the uterine cavity is the same. Doc. 94-3 at 83. There are no
differences in the medical techniques when performing aspiration and D&E procedures
for abortions in cases of rape, incest, or life-limiting anomalies than when performed for
any other reason. See id. at 111–12, 115–16, 185; Doc. 94-1 at p. 29 ¶ 57.
There are physiological differences in the cervix between some patients presenting
for miscarriage management and some patients presenting for abortion. Doc. 97-5 at
¶¶ 37–39; Doc. 97-4 at ¶ 56; Doc. 97-6 at ¶ 47. In some miscarriage management
patients, fetal cortical bone has softened naturally before the procedure. Doc. 97-7 at 2.
There are risks from these procedures, whatever their purpose, including bleeding,
hemorrhaging, infection, damage to the uterus and other organs, cervical laceration,
uterine perforation, pulmonary embolism, and death. Doc. 65-1 at ¶¶ 80, 136, 152; Doc.
74-1 at 33–36, 91–93 (speaking generally of all induced abortions). While rare, major
complications requiring hospital admission can occur during surgical abortions, both
before and after the twelve-week mark. At all gestational ages, complications requiring
transfer from a clinic to a hospital arose in only 34 of the 43,339 surgical abortions the
plaintiffs performed in North Carolina between January 1, 2020, and December 31, 2023,
which is well under a tenth of one percent. Doc. 94-1 at pp. 27–28 ¶ 53. Only seven of
those patients required admission, and all 34 were released in stable conditions. Id. Of
the 34 patients requiring transfers, only 17 were patients at the post-12-week gestational
age. Id. at pp. 66–67. The plaintiffs have experienced no logistical difficulties with these
infrequent transfers. Id. at pp. 27–28 ¶ 53.
The risk of complications from aspiration and from D&E increases with
gestational age. Doc. 49-2 at ¶ 27; Doc. 65-1 at ¶¶ 38–42; Doc. 65-3 at ¶ 35; Doc. 74-1 at
150; Doc. 74-2 at 146. The rate of such complications between women presenting for
abortion and women presenting for miscarriage management is comparable, and in some
circumstances, second-trimester miscarriage management has a greater rate of
complication than second-trimester abortion at the same gestational age due to the risk of
disseminated intravascular coagulation. Doc. 94-1 at p. 15 ¶ 29, p. 19 ¶ 37; Doc. 100-1 at
¶¶ 51–52; Doc. 100-2 at ¶ 27; Doc. 94-4 at 65, 80–82.
For many years, aspiration and D&E procedures performed to induce abortions
have primarily and routinely taken place in clinics, not in hospitals. Doc. 49-1 at ¶¶ 36,
40. When undertaken for miscarriage management in the second trimester, these
procedures typically take place in a hospital. Doc. 74-3 at 116; Doc. 94-2 at ¶ 20; Doc.
97-2 at ¶¶ 81–82. The procedures are the same whether undertaken in a hospital or
outpatient setting. Doc. 49-1 at ¶ 38. To date, the plaintiffs regularly perform these
procedures in their own clinics after 12 weeks, id. at ¶¶ 12, 36, sometimes on referral
from hospitals. Id. at ¶ 46; Doc. 94-1 at p. 29 ¶ 57. There may be patient-specific
reasons why some patients need hospitalization for the procedures. Doc. 49-1 at ¶ 44.
Surgical abortions in hospitals are more expensive, logistically difficult, and more
time-consuming for patients than those performed in clinics, and such financial and
logistical challenges may result in delay and increase the gestational age of the
pregnancy, and thus the maternal health risks, by the time the abortion occurs. Id. at
¶¶ 36, 70; Doc. 69-1 at ¶ 31; Doc. 94-1 at p. 42–43 ¶ 90, p. 44 ¶ 94. These issues,
particularly cost, may prevent some women pregnant as a result of rape or incest or
facing a life-limiting anomaly from obtaining a surgical abortion within the time limits
prescribed by the statute. The American College of Obstetricians and Gynecologists and
the American Public Health Association have endorsed the view that it is unnecessary to
require abortions to be performed in hospitals. Doc. 49-1 at ¶ 37.
B. Equal Protection
The Equal Protection Clause of the Fourteenth Amendment prohibits any state
from “deny[ing] to any person within its jurisdiction the equal protection of the laws.”
U.S. CONST. amend. XIV, § 1. Generally, “legislation is presumed to be valid and will be
sustained if the classification drawn by the statute is rationally related to a legitimate state
interest.” City of Cleburne, 473 U.S. at 440. Unlike laws that treat similarly situated
people differently based on race, alienage, national origin, or sex, which trigger a
heightened standard of review, federal courts do not closely scrutinize legislative
enactments that distinguish “characteristics relevant to interests the State has the
authority to implement.” Id. at 441–42. Courts apply a lower level of scrutiny out of
respect for the separation of powers. Id.
The Supreme Court has held that “regulation of abortion is not a sex-based
classification and is thus not subject to the heightened scrutiny that applies to such
classifications” and that it is “governed by the same standard of review as other health
and safety measures.” Dobbs, 597 U.S. at 236–37 (cleaned up). To succeed on an equal
protection challenge where no fundamental right is at play, the plaintiff “must prove that
it has been intentionally treated differently from others similarly situated and that there is
no rational basis for the difference in treatment.” In re Premier Auto. Servs., Inc., 492
F.3d 274, 283 (4th Cir. 2007) (cleaned up). The parties agree that the plaintiffs’
Fourteenth Amendment claim is subject to rational basis review and that “the protection
of maternal health and safety,” the only interest the intervenors, speaking on behalf of the
General Assembly, have put forth, Doc. 65 at 2; Doc. 98 at 28, is a legitimate state
interest. Doc. 49 at 11; Doc. 65 at 8; Doc. 94 at 11; Doc. 98 at 31.
The evidence establishes without dispute that there are “classifications” here.
Women presenting for abortion and women presenting for miscarriage management are
similarly situated because they seek access to the same aspiration and D&E procedures.
Doc. 94-1 at p. 13 ¶ 25, p. 15 ¶ 29; Doc. 94-3 at 27, 82. And women who need an
aspiration or D&E procedure are intentionally treated differently depending on the
personal reason they need the procedure. If performed for miscarriage management after
12 weeks of pregnancy, neither aspiration nor D&E must be performed in a hospital.
§ 90-21.82A(c).8 But if performed for the purpose of terminating a pregnancy when a
woman is pregnant as a result of rape or incest or there exists a life-limiting anomaly, the
Act requires the procedure to be done in a hospital after 12 weeks of pregnancy. Id.
But different treatment is not enough for the plaintiffs to prevail. They must show
that there is no rational basis for the different treatment. When courts apply the most
lenient tier of review, rational basis, they presume the validity of state laws, see City of
Cleburne, 473 U.S. at 440, and the plaintiff must “negative every conceivable basis
which might support it.” Lehnhausen, 410 U.S. at 364. The state has no burden to make
any showing or present any evidence, see Settle, 24 F.4th at 943, and courts are satisfied
with the government’s rational speculation linking the regulation to a legitimate purpose,
even “unsupported by evidence or empirical data.” Beach Commc’ns, 508 U.S. at 315.
Here, the plaintiffs have not negated every conceivable basis the General
Assembly may have had for adopting the hospitalization requirement. Major
8 As noted supra at 21–22, the statute excludes miscarriage management from the definition
of a surgical abortion and thus from the hospitalization requirement. § 90-21.81(9b)(c)
(excluding removal of “a dead, unborn child who died as the result of (i) natural causes in utero,
(ii) accidental trauma, or (iii) a criminal assault on the pregnant woman or her unborn child
which causes the premature termination of the pregnancy” from the definition of surgical
abortion).
complications requiring transfer and admission to a hospital sometimes, though rarely,
occur during surgical abortions, and Doc. 94-1 at p. 27 ¶ 53, and the risk of complications
from such procedures increases with gestational age. Doc. 49-2 at ¶ 27; Doc. 65-1 at
¶¶ 38–42; Doc. 65-3 at ¶ 35, Doc. 74-1 at 150; Doc. 74-2 at 146. It is impossible to be
sure whether complications may arise for a particular patient until after the abortion
procedure begins. Doc. 74-2 at 64–65, 67. During the second trimester, aspiration and
D&E procedures performed for miscarriage management typically take place in a
hospital, Doc. 74-3 at 116; Doc. 94-2 at ¶ 20; Doc. 97-2 at ¶¶ 81–82, but the same
procedures for abortions are primarily and routinely performed in outpatient clinics. Doc.
49-1 at ¶¶ 36, 40. The hospitalization requirement for women seeking abortion after 12
weeks of pregnancy, when the rate of complications is higher, arguably reduces maternal
health risk for abortion patients who experience major complications because they will
already be in a hospital and not require transferring.
The plaintiffs have offered substantial evidence that abortions performed in
outpatient clinics are just as safe as, and sometimes safer than, those performed in
hospitals, and that the risk of complications requiring hospitalization is tiny.9 If that were
the issue, the plaintiffs would no doubt prevail, as the intervenors have not credibly
9 As noted supra at 23–24, complications requiring transfer from a clinic to a hospital arose
in only 34 of the 43,339 surgical abortions the plaintiffs performed in North Carolina between
January 1, 2020, and December 31, 2023, Doc. 94-1 at pp. 27–28 ¶ 53, only seven were actually
admitted, id., and only 17 involved procedures with patients at the post-12-week gestational age
who would have been subject to the hospitalization requirement. Id. at pp. 66–67.
undermined this evidence.10 The plaintiffs have also produced uncontroverted evidence
that the hospitalization requirement is likely to result in delay, thus increasing the risk of
complications and risks to maternal health. See, e.g., Doc. 94-1 at p. 43 ¶ 92, p. 44 ¶ 93.
But because a legislative enactment “is not subject to courtroom fact-finding and may be
based on rational speculation unsupported by evidence or empirical data,” courts will not
weigh the legislature’s policy considerations and choices. Beach Commc’ns, 508 U.S. at
315–16.
Here, the General Assembly may have rationally speculated11 that the
hospitalization requirement would protect maternal health by reducing risks to some
women who seek a surgical abortion after 12 weeks and experience major complications
from the procedure. They may have also speculated that the requirement would provide
women seeking abortions the same level of safety most women seeking miscarriage
management already receive when undergoing the same procedures in hospital settings.
10 The intervenors offer only a conclusory assertion by one physician that these procedures
are “more risky” when done to accomplish an abortion than when done for miscarriage
management, with no applicable supporting studies or data. Doc. 94-4 at 74.
11 Courts are unquestionably not the appropriate place for the exercise of legislative
judgments. But one might reasonably question why “rational speculation” is enough to justify a
legislative decision on matters subject to medical studies and science. There are many cases
where legislative bodies have been able to defend their health and safety decisions with science,
not just speculation. See, e.g., Bauer v. Summey, 568 F. Supp. 3d 573, 597 (D.S.C. 2021)
(refusing to preliminarily enjoin city and county COVID-19 vaccine requirements that were
“based on reliable science and medicine” because they are likely to survive rational basis review
and discussing medical evidence); Talleywhacker, Inc. v. Cooper, 465 F. Supp. 3d 523, 538
(E.D.N.C. 2020) (refusing to preliminarily enjoin state executive order requiring continued
closure of entertainment and fitness facilities during COVID-19 pandemic where medical
evidence showed “risk of spreading COVID-19 [was] higher” at such businesses than others, like
restaurants, permitted to reopen). But “rational speculation” is the general standard established
by the Supreme Court. Beach Commc’ns, 508 U.S. at 315.
The plaintiffs have not negated every conceivable basis the General Assembly may
have had for passing the hospitalization requirement. The plaintiffs’ motion for summary
judgment on their equal protection claim addressed to the hospitalization requirement
will be denied. The intervenors’ motion for summary judgment will be granted.
C. Substantive Due Process
The plaintiffs alleged that the hospitalization requirement violates the Due Process
Clause of the Fourteenth Amendment. Doc. 42 at ¶ 85. They ask for summary judgment
on the substantive due process claim because the rational basis analysis is the same for
both the substantive due process and equal protection claims. Doc. 100 at 17 n.5.
Because the underlying rational basis review is the same for both claims and
because the plaintiffs have not negated every conceivable basis the General Assembly
may have had for enacting the hospitalization requirement, the intervenors’ motion for
summary judgment on the plaintiffs’ substantive due process claim against the
hospitalization requirement will be granted. The plaintiffs’ motion for summary
judgment on the substantive due process claim will be denied. The intervenors’ motion
for summary judgment will be granted.
V. Severability
Section 90-21.92 of the Act contains a severability clause, which reads:
If any one or more provision, section, subsection, sentence, clause,
phrase, or word of this Article or the application thereof to any person
or circumstance is found to be unconstitutional, the same is hereby
declared to be severable, and the balance of this Article shall remain
effective, notwithstanding such unconstitutionality. The General
Assembly hereby declares that it would have passed this Article, and
each provision, section, subsection, sentence, clause, phrase, or word
thereof, irrespective of the fact that any one or more provision,
section, subsection, sentence, clause, phrase, or word be declared
unconstitutional.
§ 90-21.92.
This severability clause constitutes clear legislative intent to preserve as much of
the Act as possible if a specific provision is found to be unconstitutional. At this stage,
the plaintiffs seek a permanent injunction only of specific sections of the Act. Doc. 94 at
24. The permanent injunction will be limited to the IUP provision only.
VI. Conclusion
The North Carolina General Assembly amended the state’s law on abortion last
year following the Supreme Court’s decision in Dobbs. One of the challenged provisions
narrowing access to abortion is unconstitutional, but the plaintiffs’ other challenge does
not succeed.
The provision requiring providers to document the existence or probable existence
of an intrauterine pregnancy violates the plaintiffs’ constitutional due process rights. The
provision does not give medical providers notice of the conduct it requires, nor does it
include sufficient standards to prevent arbitrary and discriminatory enforcement. The
plaintiffs’ motion for summary judgment directed to enforcement of this provision will be
granted, and the intervenors’ cross-motion for summary judgment will be denied.
The provision requiring that surgical abortions after 12 weeks of pregnancy be
performed in a hospital does not violate the plaintiffs’ constitutional due process or equal
protection rights. There is no fundamental right to abortion, and the General Assembly
may have rationally speculated that the hospitalization requirement protects maternal
health and safety of a few women. The intervenors’ motion for summary judgment
directed to enforcement of the hospitalization requirement will be granted, and the
plaintiffs’ cross-motion will be denied.
It is ORDERED that:
1. The plaintiffs’ motion for summary judgment, Doc. 93, is GRANTED in
part as to the IUP provision, § 90-21.83B(a)(7), and is otherwise
DENIED.
2. The defendant-intervenors’ cross-motion for summary judgment, Doc. 97,
is GRANTED in part as to the hospitalization requirement, §§ 90-
21.81B(3), (4); § 90-21.82A(c), and is otherwise DENIED.
3. Pending entry of a permanent injunction, the preliminary injunction
entered September 30, 2023, Doc. 80, remains in place to the extent it
prohibits each and every defendant, their agents, and successors in office
from enforcing – by civil action, criminal proceeding, administrative action
or proceeding, or any other way – the provision requiring documentation
of the existence or probable existence of an intrauterine pregnancy before
prescribing, administering, or dispensing an abortion-inducing drug, § 90-
21.83B(a)(7).
4. The preliminary injunction entered September 30, 2023, Doc. 80, is
VACATED to the limited extent that it enjoined the requirement that
surgical abortions after 12 weeks of pregnancy be performed in a hospital,
§§ 90-21.81B(3), (4); § 90-21.82A(c).
5. Final judgment and a permanent injunction will be entered separately as
time permits.
This the 26th day of July, 2024.
UNITED STATES DIS □ JUDGE
33