By David Bass
A draft opinion newly leaked from the U.S. Supreme Court could mean that the justices are poised to leave abortion law to individual states. The leak, first reported by Politico, dates back to February and indicates that the high court may be preparing to overturn or drastically curtail the 1973 Roe v. Wade decision on abortion.
The draft opinion written by Justice Samuel Alito centers on the Dobbs v. Jackson case, which arises from a 2018 law in Mississippi that outlaws abortion after 15 weeks of pregnancy. It is unusual for such a decision to be leaked, and it is speculated to have come from a clerk or other employee of the court. The FBI is reportedly launching an investigation into the breach. A draft opinion does not mean a decision or ruling is final.
On Monday night, Capitol Police in Washington, D.C., put barricades around the U.S. Supreme Court building as demonstrators gathered to oppose the view in the leaked opinion.
The high court addressed abortion law in 1992 in Planned Parenthood v. Casey, which largely reaffirmed Roe but also expanded options for states to regulate abortion. However, observers had expected the new conservative majority on the nation’s highest court to strike a fatal blow to the Roe decision that compelled states to open access to abortion. Based on the tone of oral arguments in late 2021, at least five justices — and maybe six — seemed inclined to do so.
Meanwhile, pro-choice advocates are hoping that North Carolina will become a “haven” for abortion if the nation’s highest court overturns Roe. One advocate went so far as to say “all roads lead to North Carolina for people to be able to seek safe and legal abortion” in the event of Roe being overturned.
Abortion advocates are saying this because the question of abortion’s legality would be returned to the states if Roe is overturned. Prior to that decision, North Carolina had already legalized abortion during the first 20 weeks of pregnancy in 1967.
In March 2019, federal District Court Judge William Osteen, in Bryant v. Woodall, struck down the 20-week ban on abortion because it didn’t meet the requirements of Roe, which is viability and generally considered to be as early as 24 weeks.
The current status of the law is that abortion is legal for any reason until viability in North Carolina — or after viability at an abortionist’s discretion. That would be what the law returns to if Roe is scraped.
Under that scenario, North Carolina would have the most liberal abortion laws of any nearby state except for Virginia. Tennessee, for example, has a “trigger” law on the books that would automatically outlaw abortion if Roe is overturned, while South Carolina has passed a fetal heartbeat bill that bans abortion after around six weeks.
Updating North Carolina’s law would become a priority for pro-life advocates in a post-Roe world.
“Pro-life groups are already hard at work to protect life in North Carolina beginning at conception,” Tami Fitzgerald, executive director of the N.C. Values Coalition, told CJ in a phone interview.
In recent years, Republican majorities in the General Assembly have worked to shore up the state’s pro-life laws. In 2011, lawmakers passed the Woman’s Right to Know Act requiring abortionists to provide informed-consent materials to a woman at least 24 hours — later extended to 72 hours — prior to an abortion.
Lawmakers have also banned telemedicine from being used to administer medication for an abortion, mandated parental consent for a minor’s abortion, and banned sex-selection abortions.
In the most recent session of the General Assembly, a bipartisan majority passed a bill to ban abortions on the basis of race or a genetic abnormality, such as Down syndrome. Gov. Roy Cooper, a Democrat, vetoed the bill. Lawmakers did not hold an override vote.
Contacted by email, Sen. Amy Galey, R-Alamance, said that it’s premature “to speculate on what might happen with pro-life laws in the short session. I am committed to continuing to fight for our unborn children.”
Abortion rates have been on the decline in North Carolina for decades. In 2000, the rate stood at 15 people per 1,000 people who can get pregnant and are of child-bearing age. That dipped to 11 people per 1,000 by 2019.
The number of abortion providers in the Tar Heel State has been on the decline for years as well. As of 2017, there were only 26 abortion providers in the state, according to data from the left-leaning Guttmacher Institute, compared to 114 abortion providers in 1982.
Also in 2017, 91% of North Carolina counties did not have an abortion provider. The number of abortions performed annually also decreased by 36% between 1980 and 2013.
That decline contrasts sharply with a rapidly growing number of pro-life pregnancy resource clinics in North Carolina. There are at least 80 centers across the state, 50 of them registered medical centers with at least one registered nurse and a medical director, according to data from the N.C. Pregnancy Care Fellowship.
These pro-life centers have been the target of pro-choice advocates for years, who want them defunded and heavily regulated. These efforts have stepped up in recent years as the GOP-controlled General Assembly has allocated state funds to them, including in the state budget for the new biennium. That budget was passed by a bipartisan majority of lawmakers and signed into law by Gov. Roy Cooper.
“We want to be available to anyone and everyone facing an unplanned pregnancy,” said Crystal Regan, CEO of the Denver, N.C.-based Heartbeats Pregnancy Care Center. “We care for them all — the woman, the man, the child. The human race.”