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NC AG’s staff asks judge not to restore 20-week abortion ban

Abortion-North Carolina
Hannah Schoenbaum
North Carolina Attorney General Josh Stein speaks in favor of protecting abortion access alongside U.S. Rep. Deborah Ross at a press conference at the North Carolina Department of Justice in Raleigh, N.C., Wednesday, Aug. 3, 2022. Stein, an abortion rights supporter, has recused himself from involvement in a case that could reinstate a 20-week abortion ban.

The North Carolina attorney general’s office, representing defendants in a 2019 case that blocked a state law banning most abortions after 20 weeks of pregnancy, has joined plaintiffs in asking a federal court not to restore the ban after the judge suggested his injunction “may now be contrary to law.”

Reinstating restrictions in the aftermath of the June U.S. Supreme Court decision overturning Roe v. Wade would create “significant risk of public confusion” about the availability and legality of abortion services in North Carolina, the attorney general’s office argued in a brief filed late Monday in U.S. District Court for the Middle District of North Carolina.

Attorney General Josh Stein, an outspoken proponent of abortion access, told reporters last week that he was continuing to recuse himself from the case, despite Republican General Assembly leaders’ accusations that his politics were interfering with his duty to defend the law.

Staff attorneys in Stein's office filed the brief without the attorney general's involvement.

“As attorney general, I will do everything in my power to protect women’s right to reproductive care because it’s the right thing to do and because it’s necessary to create the kind of North Carolina we all want,” Stein said Wednesday.

A month after U.S. District Judge William Osteen asked all parties in the case to file briefs explaining whether they think his previous ruling retains legal force in the absence of federal abortion protections, both parties said they do not see a strong legal argument for lifting the injunction at this time.

The two district attorneys who are named parties in the case said they “have no intention to exercise that enforcement authority” over the 20-week ban. Stein’s office said none of the state’s other district attorneys have indicated they would enforce the ban, either.

Though both parties oppose further action in the case, Republican legislative leaders are urging Osteen to move forward. Attorneys for Senate Leader Phil Berger and House Speaker Tim Moore, who are not named parties in the case, argued in a July 27 friend of the court brief that they had “significant interest” to intervene because Stein was avoiding his responsibilities by not seeking enforcement of the blocked 1973 state law.

The doctors who brought the case to court argue that because the legislative leaders are not named parties in the case, they should have to take additional steps for the court to consider their involvement.

“We’re confident that Judge Osteen will see through the political posturing of the plaintiffs and the attorney general’s office and lift the injunction now that Roe and Casey have been overturned,” said Berger spokesperson Lauren Horsch, referring to the two cases struck down by the Supreme Court on June 24.

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