Laws regulating abortion in North Carolina date back to 1881
If the U.S. Supreme Court overturns the landmark Roe v. Wade decision, abortion will be banned immediately in roughly a dozen states. In North Carolina, the future of abortion rights is less clear.
The state has updated its laws about abortion at least three times, including once in 1973 with a measure that has been partially blocked from taking effect because of Roe.
North Carolina’s first law regulating abortions is from 1881. It made abortions illegal after “quickening,” or when the pregnant person can feel fetal movements, which usually happens around four to six months into a pregnancy. A number of states enacted laws similar to this one in the late 1800s, according to Meghan Boone, an associate professor at Wake Forest University’s law school. Boone said these laws were motivated, at least in part, by racism.
“There was concern following the Civil War that there were not enough white women who were producing children and there was a concern about the ‘browning of America,’” Boone said.
The laws were also an attempt to medicalize obstetrics and women’s healthcare in general, which had traditionally been handled primarily by midwives, Boone said.
Eighty-six years after this initial 1881 law, state lawmakers in 1967 modified the measure to say abortions were legal if the pregnancy was the product of rape or incest or if abortion was necessary to protect the life and health of the mother. There were several reasons for the shift, according to Boone, including an increased awareness of the risks involved in underground abortions and the growing popularity of the women’s liberation movement in the 1960s.
“At that time, political feelings about abortion had not hardened in the same way (they have today),” Boone said. “So while there was certainly a group of people who would’ve identified strongly as ‘pro-life’ at that time … it was a much smaller group and it wasn’t completely coextensive with a particular political party or even with a particular religious group.”
Then, in 1973, came Roe v. Wade. North Carolina lawmakers passed an additional abortion law the same year that included a ban on most abortions after 20 weeks — though, because of the Roe decision, that 20-week ban portion of the law was not enforced. A court in 2019 ruled the 20-week ban was unconstitutional, which a federal court upheld in 2021.
In 2015, state lawmakers added further restrictions, including a mandatory three-day waiting period after a patient seeking an abortion has their initial consultation with a provider. Patients under 18 must also receive permission from a parent or guardian.
If Roe is overturned, interpreting North Carolina’s laws could be complicated.
“It’s not 100% clear, once Roe is no longer the federal law of the land, how they’re all (the laws) going to be interpreted together to regulate abortion in the state,” Boone said.
Boone suspects nothing will change immediately in the state if Roe is overturned. The question, she said, is whether local prosecutors would start enforcing the blocked 20-week ban, prompting abortion providers to sue and a judge to decide whether that portion of the law can be reinstated. Providers could also sue seeking clarification.
In addition, state lawmakers have the option of passing stronger restrictions on abortion, though legislative leaders as of Wednesday afternoon had not proposed anything. Gov. Roy Cooper has also said he would veto any bill restricting abortion rights.