Women’s History Month: Status of Abortion in NC in 2021

This article is a part two to the article – Women’s History Month: History of Abortion in NC, 1973 – 2020, which was published on March 22, 2021 and authored by Gailya Paliga of NC N.O.W.

Women’s History Month: Status of Abortion in NC in 2021

Guttmacher Institute, a leading sexual and reproductive health research and policy organization, classified North Carolina as hostile to abortion in 2020. This hostility is clearly demonstrated by the many restrictions added since 2011, the limited number of abortion clinics, the limited areas of the state which have clinics, and the legislature funneling taxpayer money to anti-abortion organizations and individual anti-abortion clinics known as Crisis Pregnancy Centers (CPCs). North Carolina has all these restrictions despite how safe abortion is. Read about safety of abortions, and history of restrictions in “The History of Abortion in NC, 1973 -2020.” Anti-abortion bills have already been filed in 2021, even though a majority of North Carolinians support safe and legal abortion. Changes could make abortion safer and more accessible.

Anti-Abortion Bills Filed Already in 2021

The first anti-abortion bill was filed in North Carolina within days of the start of the 2021 legislative session, and it is a six week abortion ban, HB31, known in politics as a “fetal heartbeat ban.” The American College of Obstetricians and Gynecologists says the term does not ‘reflect medical accuracy or clinical understanding,’ and the Guardian adopted a policy not to use the term, according to The Guardian. The six week abortion bans, like those introduced mostly in the South and the Midwest in 2019, prohibit abortion at the point faint cardiac activity is detectable by sophisticated vaginal ultrasound—as early as six weeks’ gestation, which is four weeks after fertilization. That is before many women are even aware they are pregnant. Referring to the organism as a fetus is incorrect and premature at 6 weeks gestation. The correct term is embryo from after fertilization (at about week 2 of gestation) to eight weeks after fertilization (aka the tenth week of gestation). The embryo becomes a fetus at the eleventh week of gestation, which is 9 weeks after fertilization. To review the inappropriate naming of these bills, at six weeks of gestation, there is no heart and there is no fetus yet. The six week abortion ban and abortion bans at other arbitrary points in a pregnancy would greatly impact women seeking abortions and impose criminal sanctions on abortion providers, who are already beleaguered.

A second anti-abortion bill was filed to put fetal personhood into the state constitution! “Persons” are protected in the US Constitution in the Fifth and Fourteenth Amendment, from governmental (state or federal) action. At least one state lawmaker seeks to change the state constitution to redefine when personhood begins. This drastic amendment seeks to redefine human life as beginning at fertilization, before a fertilized egg reaches the uterus. NC NOW’s Legislative Update #5 clarified as follows. “In short, this amendment would define human life as beginning before pregnancy. The intent of Human Life Amendments is to effectively outlaw all abortions.” Attempts to redefine personhood have been going on for many years and have frightening consequences for women.

More anti-abortion bills will likely be filed. The NCGA may try to give more taxpayer money to Crisis Pregnancy Centers (CPCs) in the state budget, for example. In 2019, they allocated $2.6 million dollars to CPCs and to umbrella anti-abortion organizations. Although this part of the state budget did not pass, the NCGA will probably try again this session. The state already gives $1.55 million to them, which Law Professor Gene Nichol wrote is unconstitutional.

Restrictions on Abortion NOW

The following restrictions on abortion were in effect as of January 1, 2021 in North Carolina. The basic list was provided by Guttmacher Institute.

The parent of a minor must consent before an abortion is provided, or the minor must get a hearing with a judge to approve it! This is called a parental consent law.
A patient must receive state-directed counseling that includes information designed to discourage the patient from having an abortion.
Waiting periods are imposed on the patient – first a 24 hour waiting period was imposed in 2011, then a 72 hour waiting period in 2015. However, 72 hours can be started with phone consultation, it doesn’t need to be in person. These waiting periods are after the patient already decided for herself she wants or may want an abortion.
Health plans offered in the state’s health exchange under the Affordable Care Act can only cover abortion in cases of life endangerment, or in cases of rape or incest.
Abortion is covered in insurance policies for public employees only in cases of life endangerment, rape or incest.
No public funding is available anymore, the state abortion fund is definitely history.
A patient must undergo an ultrasound before obtaining an abortion.
There was an extreme requirement to force “health-care workers to show women their ultrasounds and discuss them in detail before an abortion — although the patients could close their eyes and hold their ears.” However, that gross imposition was removed in Stuart v. Camnitz in Dec 2014 by the U.S. Court of Appeals for the 4th Circuit, which ruled that it violated physicians’ First Amendment rights.
The 2015 iteration of the so called Women’s Right To Know (WRTK) law forces doctors to submit ultrasound images, along with fetal measurements and other data, to state authorities when performing abortions past a certain point in a pregnancy. These are sent to the Department of Health and Human Services (DHHS). This requirement went into effect on January 1, 2016. Anti-abortion advocates have stated that this is so the state could second guess how far along the pregnancy is and take action.
An abortion may be performed at or after viability only in cases of life endangerment or severely compromised health. Fetal viability is the gestational age at which a prematurely born fetus/infant has a 50% chance of long-term survival outside its mother’s womb. Currently, the limit of viability is considered to be around 24 weeks, although the incidence of major disabilities remains high at this point.
The state requires abortion clinics to meet unnecessary and burdensome standards related to their physical plant, equipment and staffing. These are known as Targetted Restrictions on Abortion Provider (TRAP) laws and make it more difficult and expensive to stay in business with the goal of forcing clinics to shut down.
The state prohibits abortions performed for the purpose of sex selection. This is one of those sneaky restrictions – invasive actions disguised to look like something that eliminates gender discrimination. Sex selection is not a known problem in the United States. However, what this restriction does is force providers to question women on their motivations for getting abortions, and also to second-guess and stigmatize women from certain communities.
The use of telemedicine to administer medication abortion is prohibited in NC, and has been since 2013.[ S.B. 353, Gen. Assemb., 2013 Sess]. With the Covid-19 epidemic, there has been increased focus by researchers, abortion rights activists and public health experts on the use of telemedicine for the provision of medication abortion nationwide.

HKonJ March in 2016; Photo Credit: Sarah Moncelle

Advantages of Telemedicine Abortion

The last point relates to the advantages that telemedicine abortion bring, which Dr. Carrie Baker has been covering in Ms. Magazine. One of her many articles is “Telemedicine Abortion: What It Is and Why We Need It Now More Than Ever,” 3/26/20. Telemedicine abortion could really be a gamechanger in many ways – for women and for providers. Only 9% of NC counties have abortion providers, so most women have to travel to get one, and with the ultrasound requirement at least 4 hours before an abortion, it’s at least a full day of missed work. Protesters have ramped up at clinics over the past four years under the Trump Administration, and law enforcement could do more to safeguard patients and staff. If women could freely consult with a doctor or nurse online, and legal interference like the ultrasound requirement removed and telemedicine permitted, telemedicine abortions would allow women to get abortions earlier in the pregnancy, and it would cost less, cause less missed work, not require childcare, and avoid protesters hassling patients at clinics. Some staff could probably work from home.

Legislature Does Not Represent The People

The North Carolina legislative leaders and majority remain hostile to abortion. Thank goodness they no longer have supermajorities in the House and Senate, but they do have majorities. However, the majority of conservatives does not represent North Carolinians political leanings or interest in abortion. A recent study showed that a majority of North Carolinians support safe and legal abortion access. Public Policy Polling surveyed North Carolinians in August 2020, and found “that a strong majority (74%) of North Carolina voters believe that abortion should be legal, and that the government should not prevent a woman from making that decision for herself.” It also found “[a] large majority (80%) also agree, with 62% in strong agreement, that any decision about pregnancy should be made by the woman with the support of people she loves and trusts, while just 13% disagree.”

The North Carolina legislature does not fairly represent North Carolinians, and that allows them to make unfair and inappropriate laws, including anti-abortion laws. The state’s legislative district maps were thrown out in September of 2019 for favoring one party over the other. According to NBCNews, “The 3 judges in that case ruled that the maps were such an extreme partisan gerrymander that they violated the state constitution.” The ruling asserted, ”North Carolina’s maps are among some of the most gerrymandered in the nation, something that was highlighted by the 2018 election.” With this extreme gerrymandering, the legislature is choosing voters for their candidates, rather than voters choosing their candidates.

Turning This Around

With fair redistricting and motivated progressive voters, North Carolinians could wrest control away from conservatives to better represent the population of the state. Then the priorities of the legislature could change to support women lives and women’s rights to make their own decisions, it could stop the state from forcing clinics to do extraneous procedures like ultrasounds, it could stop tracking women’s private medical records, stop storing these records so others can second guess doctors under a different governor, and it could get rid of unfair and extraneous TRAP laws and procedures. In the meantime, people can write their representatives, write letters to the editor and use social media to push back. Virginia has managed to turn its state around to the point that in April of 2020, the Virginia governor managed to sign abortion protections into law. Another approach to stop the waves of abortion restrictions is to change federal law with something like the Women’s Health Protection Act of 2019. Lastly, legalizing telemedicine abortion would help patients and staff in many ways, including thwarting protesters by removing some patients as targets. Having more federal protection and more progressive state lawmakers would be great for women.