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AG Stein says he won't defend 'many' parts of new abortion law in court

North Carolina Attorney General Josh Stein speaks in front of the Supreme Court in Washington, on Dec. 7, 2022.
Andrew Harnik
North Carolina Attorney General Josh Stein speaks in front of the Supreme Court in Washington, on Dec. 7, 2022.

Attorney General Josh Stein says he won’t defend provisions in North Carolina’s new abortion law that he thinks are unconstitutional.

Planned Parenthood and other abortion rights advocates have filed a federal lawsuit seeking to strike down the new law, which bans most abortions after 12 weeks of pregnancy. The attorney general is typically the defendant when state laws face legal challenges, and so Stein is named as the defendant in this case.

But Stein – a Democrat who opposes abortion restrictions – says in an emailed statement that many parts of the new law violate the U.S. Constitution.

"I support women’s reproductive freedoms," he said. "After a thorough review of the case in Planned Parenthood v. Stein, I have concluded that many of the provisions in North Carolina’s anti-abortion law are unconstitutional. My office will not defend those parts of the law."

A spokeswoman for Stein didn't immediately respond to a follow-up question Friday about which provisions Stein won't defend. In addition to the 12-week ban, the law includes a variety of new regulationsranging from medication abortions to informed consent requirements to licensing rules for abortion clinics.

Late Thursday, legislative leaders asked the judge to let their own attorneys participate in the lawsuit. A hearing is scheduled for Wednesday on a request from the plaintiffs to block the law from taking effect July 1, and they want their attorneys to be able to argue in court and file a request to dismiss the lawsuit.

Meanwhile, lawmakers are trying to revise the law with another bill that appears to address inconsistencies cited in the lawsuit. Sen. Ralph Hise, R-Mitchell, says that bill is being fast tracked. An initial vote was held Thursday afternoon, with the new language added to another health-related bill and passed just minutes after it was introduced. Democrats complained that they had little time to read the language before the vote.

"This is some clarifying language — the bill will go into effect on July 1 — that kind of timeline with the 10 days and others means that we need to get this done so that something that could be unclear doesn’t go into law, but the clarifications are there at the same time," Hise said.

A final vote on that bill is set for Monday night; the House would also need to vote on it next week, and it's possible Gov. Roy Cooper could veto it.

One provision in the "clarifying" bill addresses one of the problems the lawsuit points out. The new abortion law says that medication abortions are legal in the first 12 weeks of pregnancy, but another provision in the new law says that doctors must confirm the fetus is "no more than 70 days" old before providing a medication abortion. That could be read as a ban on medication abortions after 10 weeks. The lawsuit calls that "nonsensical."

The WUNC Politics Podcast is a free-flowing discussion of what we're hearing in the back hallways of the General Assembly and on the campaign trail across North Carolina.

"It is therefore unclear whether plaintiffs are prohibited from providing medication abortion at ten weeks or after the twelfth week of pregnancy and whether they can provide early medication abortion when a patient has a positive pregnancy test but it is too soon to visualize an intrauterine pregnancy," attorneys for Planned Parenthood wrote.

The new bill would delete the "no more than 70 days" language from the new law, to clarify the medication abortion rule.

The bill also appears designed to address confusion over whether medical providers could refer patients seeking abortions after 12 weeks to providers in another state where it's still legal.

"It is not clear if this prohibition applies to helping people access lawful abortion in another state," attorneys wrote in the lawsuit. "If that were the case, this provision would violate the First Amendment."

The bill deletes that wording, which would mean the new law would likely allow referrals to other states.

Wednesday's court hearing will be before U.S. District Court Judge Catherine Eagles in Greensboro. She was appointed to the court by President Barack Obama in 2010.

Colin Campbell covers politics for WUNC as the station's capitol bureau chief.
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