This summer, the U.S. Supreme Court may overturn the nearly 50-year-old legal precedent upholding the legal right to an abortion. If that happens, North Carolina is one of the few Southern states where abortion would remain legal after six weeks.
According to a draft opinion authored in February that was leaked to Politico, five Supreme Court justices intend to overturn Roe v. Wade, a decision that has upheld the right to an abortion for nearly 50 years.
In an Opinion of the Court brief written by Associate Justice Samuel Alito, the court intends to overrule the precedents of Roe v. Wade and Planned Parenthood v. Casey. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” Alito’s draft opinion says, seemingly leaving it up to each state to decide how or whether to regulate abortions.
Chief Justice John Roberts confirmed the authenticity of the draft the following day and vowed to open an investigation into the identity of the person who leaked it to Politico.
If the high court overrules the two precedents upholding the right to an abortion, 26 states are expected to attempt to immediately ban abortion, but North Carolina is not among them, according to the Guttmacher Institute.
Many of those states have so-called “trigger bans” tied to the high court overturning Roe. Eleven states have a ban on abortions after the sixth week of pregnancy — before many people know they are pregnant. Four state constitutions specifically say abortion is not allowed.
Every Southern state except North Carolina, Maryland and Virginia is expected to ban abortion or significantly restrict the procedure as soon as possible, the institute says.
Georgia, South Carolina and Tennessee — states bordering North Carolina — all have a ban on abortions after six weeks. Tennessee also has a provision in its state constitution banning abortions, which may trigger when the official opinion is released.
Some states are attempting to bar travel across state lines to obtain abortions.
If so — many states ban abortion or restrict it to a functional ban — “there could be a whole host of implications, most of which have not been carefully thought out,” said Dr. Richard Shannon, chief quality officer for Duke Health.
“What does this mean for the concept of individual rights?” Shannon asked.
“What does this mean for the growing public health crisis of maternal morbidity and mortality? What does it mean to the child welfare state? What does it mean to foster care? There are broad implications.”
If the Supreme Court’s opinion holds close to the draft released earlier this year, it will be up to the states to regulate abortion for their citizens, said Ann Webb, senior policy counsel for the American Civil Liberties Union of North Carolina.
“Ultimately, if Roe v. Wade is overturned, it puts immense power in the hands of the General Assembly, and it puts a lot of weight on upcoming elections,” Webb said.
It is also possible for the U.S. Congress to pass a nationwide ban on abortion, if the political balance of power shifts, Webb said.
Senate Minority Leader Mitch McConnell intimated as much in an interview with USA Today when he said a national ban “is something worthy of debate.”
So far clinics have not seen an influx of patients, said Molly Rivera, spokeswoman for Planned Parenthood South Atlantic.
“That’s because the people we are seeing this week already made their appointments a while ago,” Rivera said. “They had to call to get in on the schedule.”
Dr. Beverly Gray, founder of the Duke Reproductive Health Equity and Advocacy Mobilization team, said abortion bans in surrounding states mean more people will travel to North Carolina to get care once the court overturns Roe v. Wade.
“We’re already seeing an increase in cases from the spillover effect,” Gray said.
“Bans in Texas and Oklahoma influence where those patients can get care, so they’re going to surrounding states. Those folks in surrounding states are getting delays in care … and they come to other states.
“We’re seeing this tidal wave effect of folks seeking care. The vast majority of abortions happen in the first trimester. If you have delays in care due to access, that is going to shift.”
State law caps abortions at 20 weeks. It also bans abortions if the reason for the abortion is to select the sex of the baby. There is no trigger ban in North Carolina.
North Carolina has mandatory counseling and a 72-hour mandatory waiting period before a woman can get an abortion, one of the longest in the nation, said Dr. Jonas Swartz, assistant professor of obstetrics and gynecology at Duke Health.
“When we want to perform an abortion for someone whose health is highly at risk before that three-day window, we need the certification of two doctors,” Swartz said. “Those sorts of restrictions make people scared to practice good medicine.”
Women “travel long distances and pay for their airfare, gas, lodging and other accommodations, especially if they have to stay multiple nights,” Rivera said.
“Not everyone has paid sick time. They have to find and pay for child care for the family they already have at home.”
Girls under age 18 must also get permission from one parent or a judge to get an abortion.
Most women who get an abortion already have at least one child, according to statistics from the state Department of Health and Human Services. Data from 2020, the most recent information available, shows that two in three women who get an abortion are already a parent. More than a quarter of abortions are for women ages 20-24, while less than 8% are for women and girls ages 19 and younger.
Nearly 80% of women who got an abortion in North Carolina were unmarried.
And nearly 60% of women used a medical, or medication-assisted, abortion. It’s a series of two pills that halt the pregnancy and then cause contractions.
At the beginning of the pandemic, the Food and Drug Administration allowed patients to meet with a doctor via telehealth to get a prescription for the medication. North Carolina and 18 other states require patients to acquire the pill after an in-person visit with a doctor, while in neighboring Virginia, patients can have the medication mailed to them, Rivera said.
Many state laws do not make exceptions for victims of rape or incest. In North Carolina, a minor must get parental permission before getting an abortion, although a judge may allow a minor to get an abortion if she is a victim of rape or “felonious incest.”
In a domestic violence situation, an abuser may tamper with birth control, remove a condom without permission (called “stealthing”), or coerce someone to not use birth control, said Kathleen Lockwood, policy director for N.C. Coalition Against Domestic Violence.
“Reproductive coercion is a common form of abuse that includes trying to get a person pregnant against their will, tampering with birth control and controlling the outcome of a pregnancy, including forcing or coercing someone to carry a pregnancy to term,” Lockwood said.
“Limiting abortion access will prevent many survivors from escaping their abusers and, in some cases, will result in escalated violence and death.”
Any doctor can provide abortion care to their patients as long as their offices meet state requirements for abortion facilities. In addition, there are 14 providers in eight counties throughout North Carolina, all in urban areas from Buncombe County to the coast.
Contrast this with Mississippi, which has one abortion clinic in the entire state, which will likely close once the court releases its opinion.
Pregnancy can be a joyous occasion, but a woman can also face significant risks while pregnant, Swartz said.
“Abortion is an incredibly safe procedure,” Swartz said.
“It gives people the right to autonomy over their bodies. … For people who have an unwanted pregnancy, often abortion can be a much safer option.”
Swartz said women are 14 times more likely to die during childbirth than during an abortion.
That is partly because the United States has a high maternal mortality rate compared with other developed countries. There are about 24 deaths per 100,000 live births in the United States, according to the national Centers for Disease Control and Prevention.
“When we take away the right to a safe and legal abortion, it means they try to access it in ways that are less safe,” Swartz said.
Gray said she cares for patients every week who at times have grave medical issues related to their pregnancy.
“We receive referrals, we have patients who are transferred in, and these are hard cases,” she said.
“Luckily, we have skilled providers. If you walk in the doors of Duke Hospital and you have an emergency in pregnancy, we are skilled to take care of that. I do worry about the impact over time if people aren’t able to access care when it’s safest.”