More lawsuits over state abortion laws are coming, a Duke law professor says

As court fights over abortion intensify in the states, a Duke law professor predicts more legal battles challenging vague laws.

Abortion is legal in North Carolina. House Speaker Tim Moore said in a statement last week that the Republican-led legislature will not take up new abortion laws this session.

Republicans hold majorities in the state House and Senate, but don’t have enough votes on their own to override Democratic Gov. Roy Cooper’s vetoes.

State limits are still on the horizon.

Republican legislative leaders want the federal court to restore a state ban on most abortions after 20 weeks. Courts in 2019 and 2021 invalidated the prohibition. But, with the end of the constitutionally protected right to abortion, GOP leaders seek to give the old North Carolina law new life.

In 2015, the legislature tightened the 1973 state law banning abortion after 20 weeks to limit exceptions to medical emergencies where immediate abortions are necessary to prevent death or “for which delay would create serious risks of substantial and irreversible physical impairment of a major bodily function.”

Does risk mean that the person must be on the edge of death, or does it include cases where continuing pregnancies would exacerbate life-threatening health conditions? Duke University OB/GYNs said the law is open to interpretation and does not adequately consider patients’ complex medical conditions.

“At 20 weeks, a patient might just be developing enough impacts from their heart disease or their cardiomyopathy, or other underlying medical issues that are causing them to have organ failure, that causing them to need to be in the ICU to stay alive,” Dr. Beverly Gray told reporters Monday. “There are all those patients who fall into that window where it’s very difficult to make the determination of when’s the risk enough. We need to be providing evidence-based care to our patients. Instead, we’re forced to learn the law in ways I never would have anticipated having to learn the law.”

Court fights over abortion laws will continue, said Neil Siegel, a Duke University law professor. He expects to see state laws challenged for their vagueness.

“I think in the language of these statues and the guidance that is offered by the states is going to matter a lot,” he said.  “It would not surprise me if a number of federal courts were to decide that a number of these laws were unconstitutionally vague.”

North Carolina will likely become a destination for people from other southeastern states seeking abortions. Abortion providers in North Carolina began seeing women come to the state from Texas soon after that state passed its six-week ban, Policy Watch reported.

“We are anticipating that there will be an increase in need for patients in the Southeast, and North Carolina may be the first spot on I-95 for people in the South who are needing care,” Gray said.

Communities of color are disproportionally affected by barriers to abortion, she said.

Black women have a maternal mortality rate that is three times higher than it is for white women, according to the CDC.

“When we limit access to abortion, we force women to carry pregnancies to term and face those risks,” Gray said.

Siegel anticipates more lawsuits if states seek to prevent people leaving their home states to seek abortions.

By Siegel’s count, a majority on the U.S. Supreme Court would protect the right to travel.

Politics, not the courts, will determine the future of reproductive health care, said Siegel, who clerked for U.S. Supreme Court Associate Justice Ruth Bader Ginsberg.

“Politics, and voting, and mobilization is really where those who believe in the vital importance of reproductive health care need to focus their efforts as doctors and lawyers do the best they can day by day, patient by patient, client by client, trying to help people,” he said.