Why North Carolina’s 20-week abortion ban is still dangerous for pregnant people

Alex Slitz/alslitz@charlotteobserver.com

How much suffering must a person endure before the government will allow them to terminate a pregnancy? How much must their life be threatened?

Those are the critical questions in North Carolina and across the country, as states cut away at abortion rights but leave exceptions for “medical emergencies.”

A federal judge allowed North Carolina’s 20-week abortion ban to go into effect Wednesday, lifting a 2019 injunction that had prohibited enforcement of the law because it was unconstitutional. Since the U.S. Supreme Court eliminated federal constitutional protections for abortion, North Carolina’s ban can be reinstated, the judge ruled. Until now, abortion in North Carolina had been legal up to the point of fetal viability, or about 24 weeks.

The ruling is not exactly a surprise. This law has been on the books since 1973, and Republican lawmakers immediately began pushing for its reinstatement following the Supreme Court’s decision in June. Importantly, abortion is still legal in North Carolina for the first 20 weeks of pregnancy, and it will remain that way unless Republicans manage to obtain a supermajority in the state legislature in November.

But even if the ban is legal, it’s still abjectly cruel. The law permits abortion after 20 weeks if there is a medical emergency — but not in cases of rape or incest. But what exactly constitutes an emergency, and who should be allowed to define it?

In 2015, North Carolina Republicans amended the law to narrow the definition of medical emergency. It says that the procedure must be necessary to avoid death or ”a serious risk of substantial and irreversible impairment of a major bodily function, not including psychological or emotional conditions.”

Abortions after 20 weeks don’t happen often, but when they do, it is typically due to medical complications or barriers to care. Sometimes, a person terminates a pregnancy after 20 weeks because the need to take time off from work and travel a long distance prevented them from doing so earlier.

That can certainly happen in North Carolina, where getting an abortion is already unnecessarily burdensome. Only nine of the state’s 100 counties have abortion clinics, and patients must receive counseling, then wait 72 hours before they can have the procedure. On top of that, North Carolina is one of the only states in the South where abortion is still legal, so some people have to travel from even further in order to get the care they need.

Even in emergent situations, the law could have a chilling effect on doctors. It is a Class H felony in North Carolina to willfully perform an abortion after 20 weeks if it does not meet the criteria of a “medical emergency,” punishable by up to 39 months in prison. The physician performing the procedure must collect and record certain data in order to prove that they are following the law, then submit that data to the state.

Doctors may have to wait until they are sure the situation is severe enough to meet the legal definition of “life-threatening,” even if it is clear the patient is at risk well before that. At best, it might cause a doctor to hesitate before making a decision in a life-threatening situation.

“My lawyer told me, ‘Unless they are on that table dying in front of you, you cannot do an abortion on them or you are breaking the law,’” one doctor in Texas told NBC News. “How am I supposed to help people from jail?”

It is not always possible to quantify the extent a person will suffer if they are forced to continue a pregnancy. North Carolina’s law does not reflect that, nor does it address the real-world situations in which abortion might be necessary after the 20th week of pregnancy. Most importantly, this is not something that should be decided or defined by politicians — only a person and their doctor.