I was born the year before the Supreme Court decided Roe v. Wade, 410 U.S. 113 (1973). Abortion has been a constitutionally protected right very nearly my whole life, so I’ve never needed to examine the issue through the lens of criminal law. That has changed as a result of Dobbs v. Jackson Women’s Health Organization, 597 U.S. __ (2022), which overruled Roe. This post identifies some of the issues that may arise under North Carolina criminal law in a post-Roe world.
Disclaimers. The legal analysis that follows is necessarily tentative given how new Dobbs is. It is intended to be neutral, in keeping with the School of Government’s non-partisan and non-advocacy stance. And it is limited by my modest knowledge of the medical aspects of abortion and related matters. I consulted with physicians and colleagues in preparing this post; I am grateful for their input, which improved the post. Still, the views below, including any errors, are mine alone.
The statutory regime. North Carolina has three main criminal statutes pertaining to abortion. Two old and facially similar statutes generally prohibit abortion:
- Under S. 14-44, which dates to 1881, it is a Class H felony to give a woman who is “pregnant or quick with child” any “drug or other substance whatever,” or to “use or employ any instrument,” with the intent “to destroy such child.”
- Under S. 14-45, also dating to 1881, it is a Class I felony to administer a drug or medicine to, or to use any instrument to, “procure the miscarriage of [a pregnant] woman, or to injure or destroy such woman.”
Notably, although G.S. 14-44 uses the phrase “pregnant or quick with child” (emphasis supplied), the state supreme court has held that it applies only after quickening, i.e., the point in pregnancy when fetal movement may be felt. Abortions prior to that time are covered by G.S. 14-45, a statute that “is primarily for the protection of the woman.” State v. Jordon, 227 N.C. 579 (1947) (applying the rule of lenity to construe G.S. 14-44 narrowly).
The third statute was enacted shortly after Roe was decided, and it carves out an exception to the background rule that abortion is a crime. Under G.S. 14-45.1(a):
Notwithstanding any of the provisions of G.S. 14-44 and 14-45, it shall not be unlawful, during the first 20 weeks of a woman’s pregnancy, to advise, procure, or cause a miscarriage or abortion when the procedure is performed by a qualified physician licensed to practice medicine in North Carolina in a hospital or clinic certified by the Department of Health and Human Services to be a suitable facility for the performance of abortions.
The same statute also allows for abortions after 20 weeks when there is a “medical emergency.” G.S. 14-45.1(b). A qualifying “medical emergency,” as defined by G.S. 90-21.81(5), “is one involving a serious risk of the mother’s death or “substantial and irreversible physical impairment of a major bodily function.” The current structure of the statute dates back to 1973. See S.L. 1973-711 (entitled An Act to Make Changes in the Abortion Law in Order to Comply with Recent United States Supreme Court Decisions). It has been amended several times since, including in S.L. 2015-62, which replaced old language allowing abortions after 20 weeks when there was a “substantial risk that the continuance of the pregnancy would threaten the life or gravely impair the health of the woman” with the current “medical emergency” formulation.
Summing up, abortion was generally criminal under state law prior to 1973. Abortion providers were prosecuted during this time as reflected in a number of reported appellate cases. See, e.g., State v. Hoover, 252 N.C. 133 (1960) (upholding convictions under G.S. 14-45 for abortion performed in a private home); State v. Brooks, 267 N.C. 427 (1966) (similar, for abortion performed in the defendant’s residence). After Roe was decided, and as a result of that opinion, the General Assembly enacted a statute making abortion generally legal before 20 weeks and later than that if certain medical circumstances exist.
Statutory regime enjoined under Roe. The current statutory regime was challenged in Bryant v. Woodall, 363 F.Supp.3d 611 (M.D.N.C. 2019), a case in which several doctors and Planned Parenthood sued several district attorneys and the Secretary of Health and Human Services, seeking a ruling that the statutory regime unlawfully criminalized abortions after 20 weeks but before viability. Standing was a major issue in the case as the plaintiffs could not identify “any prosecutions for performing an abortion in violation of the criminal statutes during the . . . history of the current statutory framework.” The district court found that the plaintiffs nonetheless had standing and granted them summary judgment. On the substantive issue, the court reasoned that Roe and its progeny do not allow states to “ban abortions at any point prior to viability,” while the combined effect of G.S. 14-44, -45, and -45.1 is to prohibit abortions after 20 weeks but before viability. (Viability is a moving target given changing medical technologies, but the parties in Bryant seemed to agree that it is no earlier than 22 weeks and may be later depending on the specific pregnancy at issue.) The court therefore enjoined enforcement of G.S. 14-45.1(a) “to the extent that the statute prohibits any pre-viability abortions.” The ruling was affirmed on appeal in Bryant v. Woodall, 1 F.4th 280 (4th Cir. 2021), though the focus of the appeal was the standing issue.
Injunction undermined by Dobbs. The remedy in Bryant strikes me as odd, because G.S. 14-45.1(a) doesn’t prohibit pre-viability abortions or anything else. As noted above, it is G.S. 14-44 and -45 that prohibit abortion, while G.S. 14-45.1 exempts certain abortions and allows them. The court did not enjoin enforcement of G.S. 14-44 or -45. In any event, Dobbs has now undercut the legal reasoning behind the injunction. I am not an expert on civil procedure, so I don’t know what the proper mechanism is for revisiting the injunction, or if that is even necessary. Whatever the procedure, it seems inevitable that at some point it will be lifted – or deemed a dead letter – and the statutory regime will be the law of the land, unless and until the statutes are amended. Leaders in the General Assembly have sent a letter to the Attorney General of North Carolina asking him to seek the dissolution of the injunction.
Does the state constitution protect abortion rights? Although Bryant focused on the constitutionality of the abortion statutes under the United States Constitution, it is important also to consider whether the state constitution protects abortion rights. The state constitution may protect rights not recognized in the federal constitution, but we don’t have any case law directly addressing whether abortion rights are protected in that way. The closest the Supreme Court of North Carolina has come to addressing the issue of abortion rights under the state constitution was in Rosie J. v. North Carolina Dept. of Human Resources, 347 N.C. 247 (1997), where a majority of the court held that the state could choose to pay for the childbirth expenses of indigent women but not for medically necessary abortions for the same population. Applying rational basis review under the state constitution, the court ruled that “the encouragement of childbirth is a legitimate governmental objective” that justified the state’s choice. Justice Parker in dissent expressed the view that the state constitution was implicated because the policy “impermissibly interfere[d] with a pregnant woman’s right to choose abortion without unduly burdensome governmental interference.” A future Supreme Court of North Carolina could potentially pick up on Justice Parker’s suggestion and rule that the state constitution protects abortion rights.
What is the scope of the safe harbor in G.S. 14-45.1? Assuming for the moment (a) that the Bryant injunction is lifted or is recognized as unsupported, (b) that the state constitution is not deemed to protect abortion rights, and (c) that the relevant statutes are not amended, the parameters of G.S. 14-44, 14-45, and 14-45.1 will determine what types of conduct may be criminal. Since G.S. 14-44 and -45 sweep quite broadly, the most important interpretive questions may concern the scope of the safe harbor in G.S. 14-45.1.
Some of the interpretation is easy. The safe harbor applies only to abortions performed by licensed physicians and only to abortions performed during the first 20 weeks of pregnancy or because of a medical emergency. Because abortions performed by licensed physicians within the safe harbor are lawful, nurses and medical assistants who participate in such abortions are doing nothing illegal. Conversely, anyone who assists with an illegal abortion (in other words, one outside the safe harbor) may be subject to prosecution under G.S. 14-44 or G.S. 14-45. They could be prosecuted as a principal if their involvement is sufficiently substantial, or under theories like aiding and abetting or conspiracy if their involvement is lesser.
Some if the interpretation is harder. Major portions of the statute were drafted five decades ago, and the statute does not always map neatly onto current clinical practice. For example, to fall within the safe harbor, an abortion “procedure [must be] performed by a qualified physician licensed to practice medicine in North Carolina in a hospital or clinic certified by the Department of Health and Human Services to be a suitable facility for the performance of abortions.” Does this language encompass medication abortions, which involve a pregnant woman taking two separate medications 48 hours apart? It is an important question because medication abortions are now very common, perhaps a majority of all abortions. But are they “procedure[s]”? Are they “performed” by a physician? Are they conducted “in a hospital or clinic”? As I understand it, the first medication must be administered in a state-approved abortion clinic by a licensed physician. See G.S. 90-21.82(1)a. But the second medication is normally used at home. Medication abortions have been FDA-approved only since 2001, so it is unsurprising that a 1973 statute does not address them clearly. A more recent civil statute regarding abortions contemplates the lawful provision of medication abortions, see G.S. 90-21.81(1), but I don’t know how much weight a court would give that statute in interpreting G.S. 14-45.1. If a court were to conclude that the scope of the safe harbor is uncertain, then considerations like vagueness and the rule of lenity might have a role to play.
Women who obtain abortions outside the safe harbor. Another important question is whether women who obtain abortions may be prosecuted under G.S. 14-44 or -45. For the most part, I don’t think so. Obviously the answer is no if the abortion is a lawful procedure within the safe harbor. But even if the abortion is unlawful – for example, if it is after 20 weeks without a medical emergency, or if the provider is not a licensed physician – the answer is still probably no. Both G.S. 14-44 and -45 concern the person who administers a drug or uses an instrument in the course of an abortion, i.e., the provider. The defendants in our pre-Roe appellate cases on abortion crimes were all providers. However, the analysis might be different if a pregnant woman self-manages an unlawful abortion. In such a case, there could be an argument that the woman has administered a drug (for a medication abortion) or used an implement (for other types of abortion) and so falls within the scope of the statutes.
Out-of-state providers of abortion medication. It appears that health care providers in other states, or even other countries, may begin to provide abortion medication by mail to pregnant women in North Carolina and elsewhere. As noted above, given the specific wording of the statute, there may be some doubt about whether the safe harbor in G.S. 14-45.1 protects medication abortions. If such abortions were deemed to be outside the safe harbor – or if medication abortions that don’t begin in a state-approved clinic were deemed to be outside the safe harbor, which would presumably be the case for medication abortions using medication supplied by mail – then the question might arise whether out-of-state providers could be subject to prosecution in North Carolina. The answer would depend on whether territorial jurisdiction exists. Jurisdiction is present if any essential act forming part of the offense takes place in this state. We don’t have a case right on point but mailing medication into the state to be used here might qualify. Cf. State v. Tucker, 227 N.C. App. 627 (2013) (truck driver misappropriated company funds while in Arizona, but because he had a “duty to account” to his employer in North Carolina, there was territorial jurisdiction to prosecute him for embezzlement); State v. First Resort Properties, 81 N.C. App. 499 (1986) (worthless check was delivered in Florida, but drafted in North Carolina; there was territorial jurisdiction to support criminal charges in North Carolina); Cooper v. Shealy, 140 N.C. App. 729 (2000) (in a civil case for alienation of affections, phone calls and emails sent from out-of-state paramour to in-state spouse were sufficient “minimum contacts” to confer jurisdiction). I suspect that out-of-state providers would be more concerned about the potential for criminal charges than out-of-country ones, given the difficulty of international extradition.
The “morning-after pill” or “Plan B.” Certain types of medication may be used shortly after sexual intercourse to reduce the risk of pregnancy. According to the FDA, Plan B “acts primarily by stopping the release of an egg from the ovary (ovulation). It may prevent the union of sperm and egg (fertilization). If fertilization does occur, Plan B may prevent a fertilized egg from attaching to the womb (implantation).” It appears that there is some debate in the medical literature about whether Plan B actually prevents implantation, but I lack the expertise to assess that debate.
The Dobbs dissenters suggested that the majority was opening a Pandora’s box, stating that “the Court may face questions about the application of abortion regulations to medical care most people view as quite different from abortion,” such as “the morning-after pill.” Could North Carolina’s abortion laws have any application to the use of these medications?
I don’t think so. Certainly G.S. 14-44 could not, as it applies only after quickening, which is far past the point when these medications are used. I don’t think that G.S. 14-45 is applicable either. The statute addresses certain acts as they relate to a woman who is “pregnant.” The American College of Obstetrics and Gynecology (ACOG) is the leading medical authority in this area, and it has long taken the position that pregnancy does not begin until implantation. Under this definition, the morning after-pill prevents, rather than terminates, a pregnancy and so is outside the scope of G.S. 14-45.
Some people disagree with the ACOG, and believe that fertilization marks the beginning of pregnancy. A 2011 survey published in the Journal of Obstetrics and Gynecology shows that even obstetrician-gynecologists do not all agree about when pregnancy begins. But because the morning-after pill primarily works by preventing ovulation, its principal effect is before even the earliest potential definition of pregnancy and so is outside the sweep of the statute. And assuming arguendo that the morning-after pill has some anti-implantation effect, at the time it is used, no one, including the woman using the medication, typically knows (much less could prove) whether fertilization has taken place.
This combination of legal and practical considerations leads me to conclude that current North Carolina law could not be used to prosecute the use of the morning-after pill. Any attempt to use the law for this purpose would also raise constitutional concerns under Griswold v. Connecticut, 381 US 479 (1965) (recognizing a constitutional right to use contraceptives).
Prosecutorial discretion. After Dobbs, several district attorneys in North Carolina have announced publicly that they will not prosecute abortion crimes. Such declarations raise familiar questions about the scope of prosecutorial discretion. Shea wrote about these questions here, but a brief summary is as follows: It is very clear that district attorneys have the discretion to decline to prosecute a particular case. It is more controversial whether district attorneys properly may refuse to prosecute an entire category of cases because they disagree with the law at issue. We have seen this sort of debate before over the Obama administration’s refusal to prosecute certain types of immigration offenses and some progressive prosecutors’ refusal to prosecute certain low-level drug offenses.
Of course, even if a local district attorney promises not to prosecute abortion crimes, abortion providers may decide that continuing to operate beyond the safe haven of G.S. 14-45.1 is too risky. What if the local district attorney loses the next election? North Carolina has no statute of limitations for felonies. And medical malpractice insurance may not cover a physician performing a procedure that is a crime. In states with abortion bans, providers generally have shut down even where the local prosecutor has promised non-prosecution.
Furthermore, in some states, pro-life legislators are identifying ways to get around a local prosecutor’s refusal to charge abortion crimes. According to PBS, the National Right to Life Committee is developing model legislation that would allow the state attorney general to prosecute an abortion crime if the local prosecutor refused to do so.
Future developments. North Carolina’s 2022 legislative session is nearing an end, and it appears that the legislature will not address abortion before it adjourns. But in overruling Roe and “return[ing] the issue of abortion to the people’s elected representatives,” the Dobbs court allowed abortion to be subject to ebbs and flows of politics, in which things are always subject to change. Litigation over the scope of state law also seems possible. As always, we will cover pertinent future developments here on the blog.