Abortion Laws for North Carolina
Currently, there are no federal statutes that protect abortion rights. As a result, this important medical care has been subject to piecemeal regulation by the states, with comparatively little federal oversight. The irregularity with which the states treat abortion access creates gaps in care accessibility, so it is important to know the state of the law in your state.
Note: a bill protecting the rights of patients and abortion providers has passed the United States House of Representatives (but has not cleared the Senate or been made law). You can track the status of that bill online.
a. Legal Framework
The laws which control abortion restrictions are largely comprised of statutes that restrict abortion access and caselaw—binding opinions by courts like the Supreme Court of the United States (SCOTUS)—which interprets the Constitution to allow or disallow the state restrictions. State courts also have an important say in the state-created constitutional and legislative protections and restrictions on abortion care. As the Supreme Court of North Carolina explained in 1988: “[W]e have the authority to construe our own constitution differently from the construction by the United States Supreme Court of the Federal Constitution, as long as our citizens are thereby accorded no lesser rights than they are guaranteed by the parallel federal provision.” State v. Carter, 322 N.C. 709, 713 (1988). So, while the United States Constitution is a floor that provides the baseline minimum for civil rights nationwide, the conversation does not end with federal law.
If there is no federal statute providing for nationwide abortion access, what is the basis for the statutes, cases, and other regulations? The answer lies in the Fourteenth Amendment to the United States Constitution: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”.
Courts have historically found a right to privacy implied by the Fourteenth Amendment. Some examples of the right to privacy include things we take for granted in the twenty-first century like:
- Use of contraception by married couples;
- Use of contraception by unmarried couples;
- Interracial marriage;
- Sexual relationships between consenting adults, regardless of gender; and
- Marriage equality.
b. Roe, Casey, and Dobbs: Where Are We Now?
When SCOTUS first definitively held in Roe v. Wade that the federal Constitution protects the right to terminate a pregnancy by abortion, it held that the “due process clause” of the Fourteenth Amendment protects individuals from state interference with their right to privacy and that abortion rights are privacy rights. At that time, the Court created a tiered system loosely based on the three trimesters of pregnancy against which it balanced the individual rights of the patient with the state’s legitimate interests in protecting the health of pregnant people and potential human life.
Almost thirty years later, the landscape changed again when SCOTUS decided Planned Parenthood v. Casey. There, the Court reaffirmed the central tenet of Roe (abortion is a protected privacy right) but scrapped the trimester-based balancing test for a new standard that disallowed abortion restrictions if the state regulation was “unduly burdensome” by creating a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Under this standard, parental consent for minors and a mandatory 24-hour waiting period were considered not unduly burdensome, while a requirement that a patient obtain spousal consent before seeking care was unduly burdensome and unconstitutional.
Once again, thirty years after Casey, SCOTUS reversed course on the nationwide state of abortion by completely overruling the fundamental tenet of Roe and finding no right to abortion included in the privacy rights enshrined in the Fourteenth Amendment. The public first learned about this change in the law in May, when a draft opinion in Dobbs v. Jackson Women’s Health Organization leaked and made headlines. Investigations and hearings regarding that leak are still underway.
The holding in Dobbs overruled the holdings set out in Roe and Casey, declared those cases to have been wrongly decided, and clearly stated that there is no federal constitutional right to abortion.
c. Abortion Care in North Carolina
So, where do North Carolinians stand now? The short answer is that abortion is legal and accessible to North Carolina patients, though it is not protected by the United States Constitution. Doctors may face criminal charges if they fail to comply with certain requirements and restrictions on their ability to provide abortion care. North Carolina General Statutes govern the criminal penalties for providers if they violate certain abortion care restrictions. For example, it is a Class I felony to provide an abortion after the twentieth week of pregnancy unless the doctor identifies a “medical emergency” (this includes physical harm as well as psychological harm) which would require abortion care after the cutoff. Doctors are required to send information about abortions performed after sixteen weeks’ gestation to the North Carolina Department of Health and Human Services, and if they provide an abortion after the 20-week cutoff, they must justify their determination of the medical emergency which formed the basis for the procedure.
North Carolina law also requires that patients be given access to certain medical information at least 72 hours before receiving abortion care (except in cases of a medical emergency), which amounts to a 72-hour waiting period. State law requires that at least 72 hours before providing abortion care, the doctor or other qualified professional must give the following information to the patient in person or over the phone:
- Medical risks associated with carrying a pregnancy to term;
- Medical risks of abortion (this information must be medically accurate);
- The probable gestational age of the fetus;
- The availability of services that offer a real-time view of the fetus including heart tone monitoring free of charge; and
- Information on medical care assistance, public assistance, child support, adoption, and carrying the pregnancy to term.
Although the information and disclosures associated with the 72-hour waiting period may be conveyed over the phone, North Carolina has an additional 4-hour waiting period before doctors may provide abortion care to their patients. State law requires that at least 4 hours before an abortion, except in cases of a medical emergency, the doctor or qualified technician providing care must:
- Perform an “obstetric real-time view” of the fetus;
- “Provide a simultaneous explanation of what the display is depicting” and “offer the…opportunity to hear the fetal heart tone”;
- Display images of the view; and
- “Provide a medical description of the images”.
The patient must provide a written certification of the provider’s compliance with these requirements. However, State law protects the patient’s right to avert their eyes and/or refuse to hear the simultaneous medical description of the real-time fetal view.
In short: North Carolina requires doctors to make many disclosures beyond those which are strictly medical before they provide abortion care. North Carolina even requires that doctors perform real-time imaging and simultaneous explanations of that imaging to patients who do not want to see and hear those images and explanations. But State law specifically states a patient’s right to refuse to see the images and hear the simultaneous explanations.
d. Abortion Care for Minors
Those under 18 years old and not emancipated from their parents must ordinarily have parental consent for abortion care in North Carolina. The relevant statute is N.C. Gen. Stat. § 90-21.7; it requires the written consent of the patient and someone else who is (a) a parent with custody; (b) a legal guardian or custodian; (c) a parent with whom the patient lives; or (d) a grandparent with whom the patient has been living for at least six months prior to the date of written consent for abortion care.
A minor may petition the court, either on their own behalf or through a guardian ad litem, for a waiver of the consent requirement if the people who must otherwise give their consent are unavailable or refuse to give consent, or if they choose not to seek their consent.
e. Conclusion
The decision to seek abortion care is a personal one that concerns you, your doctor, and no one else. No one can force you to have an abortion, and no one can prevent you from having an abortion as long as you are within the legal time constraints for obtaining abortion care in North Carolina. Patients and doctors are both required to comply with restrictions and regulations like wait times and ensuring receipt of state-mandated content. Understanding the legal landscape and specific requirements of abortion care in North Carolina is an important step for patients and providers alike.