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In a 6 to 3 decision on June 24, 2022, the U.S. Supreme Court voted to overturn Roe v. Wade, reversing the court's 50-year-old decision that guaranteed a woman's right to obtain an abortion. The court's action also set off trigger laws that banned or severely restricted abortions in some states and prompted protests across the country.

Legal challenges keep NC abortion law in flux

scales of justice

More than a year after state lawmakers passed Senate Bill 20, adding new abortion restrictions in a late-night vote overriding Gov. Roy Cooper’s veto, the status of the law dictating access to the procedure in North Carolina remains in flux. That’s because the law has been entangled in two lawsuits that challenge some of the requirements lawmakers implemented. 

A federal judge’s ruling on June 3 in the first case loosens restrictions on how medication abortion pills can be provided in North Carolina. The same judge will soon determine the fate of two other contested provisions in a second case.

U.S. District Judge Catherine Eagles in Greensboro issued her judgment, which struck down several of North Carolina’s rules on dispensing medication abortion pills. She ruled that the state’s new restrictions exceeded what the U.S. Food and Drug Administration requires. In an April written opinion, she explained her reasoning that state lawmakers cannot overrule the federal agency’s regulatory authority by mandating patients only obtain medication abortion pills from a physician in person — requirements the FDA specifically determined are unnecessary for safe use.

Now midwives, nurse practitioners and physician assistants will be able to prescribe mifepristone and provide medication abortions, opening a new pool of providers for abortion care in the state. These advanced practice clinicians and physicians can also prescribe medication abortion pills via telehealth, allowing patients to take mifepristone at home.

Eagles also struck down the requirement imposed by the N.C. General Assembly that patients schedule an additional in-person follow-up visit when obtaining a medication abortion — a requirement that meant three appointments for patients in North Carolina.

"Politicians in North Carolina cannot interfere with the FDA's authority and impose medically unnecessary restrictions on medication abortion care," said lead plaintiff Amy Bryant, a Chapel Hill-based obstetrician-gynecologist, in a statement after the ruling.

Eagles’ ruling opens up more options for providing and obtaining medication abortion pills in North Carolina — options that have been available for years in Virginia and other states.

Now, it’s up to abortion providers and clinics to work through the logistics of implementing the new options that could increase access to the procedure.

“We're looking into ways that these new law changes will help us expedite and make more efficient care plans in the clinic,” said Calla Hales, executive director at A Preferred Women’s Health Center, which operates two abortion clinics in North Carolina.

Hales said she’s cautiously optimistic that the changes to medication abortion access in the state may help expand capacity, which she said is sorely needed to meet the demand of North Carolinians seeking care, as well as an influx of patients from other states in the South.

“There's a lot of possibility and potential for expanding access, but kind of in that same vein, it's one of those things that you have to build the support around to see the change,” Hales said. “It'll be an interesting couple of months as we see this really kind of take hold.”

Expanded access

Jenny Black, president and CEO of Planned Parenthood South Atlantic, said in a statement that the ruling is a “victory for thousands of patients statewide, particularly in rural areas, who have been deprived of full access to medication abortion.”

Abortion opponents decried the ruling. 

“This decision puts women’s health and safety at risk so the abortion industry can fast-track dangerous chemical abortions and maximize profits,” said NC Values Coalition head Tami Fitzgerald. “In-home abortions leave women and girls to give birth to their dead babies at home alone without the assistance of a doctor, often long after the 10-week limit the FDA recommends.”

Medication abortion using a two-drug regimen of mifepristone and misoprostol is the primary way people access abortion nationwide. In North Carolina, abortion using pills — commonly known as medication abortion — accounts for nearly 70% of total resident abortions, according to the latest state data, with 19,967 medication abortions being provided in 2022.

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Black said that Planned Parenthood South Atlantic will take immediate action to expand access to medication abortion in its N.C. health centers via telehealth and by using advanced practice clinicians. That’s already how care is provided in its Virginia clinics.

Katherine Farris, chief medical officer at Planned Parenthood South Atlantic, previously told NC Health News how telehealth has served as a critical point of access to abortion care in Virginia. She said it’s an option patients like, as it can be done on their own timeline — even a lunch break.

“They answer all the questions, they get the counseling, they go through the consent process and then the pills are mailed to them,” Farris explained. “And then after work, they can take the pills as soon as they come — the next day — so they can miss literally not an hour of work. They don’t need to get even a minute of child care. They don’t need gas money. They don’t need time to travel. They don’t need to borrow anyone’s car. They can just get the care they need where they are.”

Now, North Carolinians will have more access to the option that has become increasingly used post-Dobbs. But that won’t happen overnight. 

While Planned Parenthood has a model for how to conduct telehealth care from its Virginia clinics, implementation could be slower at other abortion clinics in the state. Hales, who oversees two Preferred Woman’s Choice Health Center clinics in North Carolina, told NC Health News telehealth is uncharted territory for her clinics. It’s not an option they can immediately roll out, though they will begin looking into it.

“As exciting as it is, it is definitely stressful trying to keep up with the law changes and also coming up with really feasible and effective plans,” Hales said.

Hales said it will also take time for the clinic to tap into the new pool of advanced practice clinicians, such as nurse practitioners and physician assistants, who can now dispense abortion pills. She said the clinic has only ever worked with physicians, as they’ve been the only ones legally able to provide care under previous North Carolina law. Hales said she’s already reaching out to other states that have long used these clinicians to provide abortion care to learn about their workflows and experiences as she works to harness their potential in her clinics.

Beverly Gray, an OB-GYN and abortion provider at Duke, said physicians providing abortion care have been stretched thin trying to meet the demand for care in North Carolina, and she believes using midwives, physician assistants and nurse practitioners could help expand capacity. There are advanced practice clinicians at Duke who have already expressed an interest in providing abortion care and have the skills and knowledge to do so, she said.

While Eagles struck down several restrictions on how abortion can be accessed, she let stand the state’s requirements for an in-person exam, ultrasound, blood testing and 72-hour state-mandated counseling before an abortion. She explained that those requirements could stand because the FDA had not specifically considered them.

Still unresolved provisions

Senate Bill 20 could be subject to even more change. Judge Eagles will rule on two other provisions in Senate Bill 20 that Planned Parenthood South Atlantic and Gray, the Duke OB-GYN, have challenged in a lawsuit. Both restrictions have been blocked from taking effect since September when Eagles issued a preliminary injunction.

The plaintiffs want the restrictions to be permanently blocked, while Republican legislative leaders, who intervened in the case to defend the law, want the provisions to take effect.

The first provision in question requires that any abortion provided after 12 weeks of pregnancy under one of the state’s exceptions — cases of rape, incest, or life-limiting fetal anomaly — must be provided in a hospital. The plaintiffs argue that this requirement places unnecessary burdens on women seeking abortions in the second trimester and will not make care any safer. Instead, care in hospitals will be more expensive and time-intensive for patients.

Gray, who provides abortion care in a hospital, said the setting does not determine the difference in safety of care; the skill and training of the provider does. She added that many hospitals in North Carolina do not even have the necessary staff to provide care in a hospital. 

But the lawmakers who seek to intervene in this case assert that it’s a reasonable requirement for safety and that some women will be helped. They cited Planned Parenthood data in which 34 patients were transferred to the hospital for care from 2020 to 2023. However, Planned Parenthood emphasized those cases were a tiny fraction of the over 43,000 abortions provided in North Carolina during the period and all were released in stable condition. 

The second provision being challenged requires physicians to document the existence of a pregnancy inside the uterus before prescribing abortion bills. Plaintiffs argued that the requirement is unconstitutionally vague, while intervenors rejected that notion.

Eagles held a summary judgment hearing June 5 in U.S. District Court in Greensboro to determine whether the case would need to go to trial. After an hour and a half of hearing arguments from both sides, she indicated the bench trial scheduled to begin July 22 was unlikely to be needed and she would instead rule through summary judgment, where a judge can make a ruling without a full trial.

Abortion providers say the ever-changing legal environment takes a toll on them, as they continually adjust their care to remain compliant with state law and address patients’ needs. 

Hales said she knows it’s best not to plan too far in advance because she never knows what’s around the corner.

“My priority has been kind of just remaining as fast and loose as possible and just able to kind of roll with it,” Hales said. “I'm just trying to be super flexible and adaptable with what situation we are in at this very second.”

U.S. Supreme Court cases could bring changes

This article first appeared on North Carolina Health News and is republished here under a Creative Commons license.

North Carolina Health News is an independent, non-partisan, not-for-profit, statewide news organization dedicated to covering all things health care in North Carolina. Visit NCHN at northcarolinahealthnews.org.