Judge lifts injunction, restores N.C.’s 20-week abortion ban | Eastern North Carolina Now

    Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.

    U.S. District Judge William Osteen has "vacated and dissolved" his injunction against North Carolina's abortion law. That decision allows a ban on most abortions after 20 weeks to take effect.

    "The issue before this court is whether to lift its injunction preventing enforcement of three North Carolina statutes to the extent those statutes prohibit pre-viability abortions," Osteen wrote in a 14-page order issued Wednesday. "This court will vacate its injunction because it was based on Supreme Court precedent that has since been reversed."

    Osteen had issued an injunction in May 2019, declaring North Carolina's abortion law unconstitutional. That decision was based on U.S. Supreme Court precedents Roe v. Wade and Planned Parenthood v. Casey.

    Conditions have changed, now that the U.S. Supreme Court overturned its abortion precedents in June with the Dobbs decision.

    Plaintiffs and defendants in North Carolina's Bryant v. Woodall lawsuit, which prompted the injunction, asked Osteen to maintain his injunction. State legislative leaders urged him to drop it.

    "Plaintiffs' and Defendants' arguments illustrate why this injunction must be dissolved and dismissed," Osteen wrote. "Defendants argue, referring to Dobbs, that '[l]ifting the injunction will likely worsen the public confusion that is inevitable from such a profound reversal in the law.'"

    "Plaintiffs similarly argue that 'the injunction preserves Plaintiffs' ability to provide critical healthcare services' and '[l]ifting the injunction would create apprehension and uncertainty among providers about what kind of patient care they can legally provide in North Carolina.'"

    "This court disagrees," Osteen responded. "Most notably, this injunction does not preserve Plaintiffs' ability to provide services contrary to North Carolina law; under Dobbs, there is now no constitutional right to a pre-viability abortion, thus depriving the injunction of any constitutional basis from which to enjoin the challenged North Carolina laws regulating abortion. Contrary to the parties' arguments, leaving the injunction in place wrongfully heightens confusion because to do so is misleading as to the effect of Dobbs."

    If plaintiffs are providing services now based on Osteen's injunction, "then those providers are acting contrary to North Carolina law," he wrote. "Neither this court, nor the public, nor counsel, nor providers have the right to ignore the rule of law as determined by the Supreme Court."

    "None of the parties argue that the injunction remains legally enforceable, nor could they," Osteen added. "The injunction was entered under the authority of [precedents] Roe and Casey; that precedent has been overruled by Dobbs. Because the power to regulate abortion has been returned to the states, the parties' suggestion that this court's injunction is having an effect, whether preventing 'confusion,' or 'preserv[ing] Plaintiffs' ability to provide critical healthcare services,' suggests the parties are improperly relying upon, and asserting, an injunction that is no longer lawful."

    "This court declines the parties' suggestion to ignore the Supreme Court's binding constitutional authority," the judge wrote. Previously enjoined abortion laws are now considered "constitutional acts."

    Osteen rejected plaintiffs' request for a 24-hour delay in lifting the injunction. They had suggested that an immediate order could hurt women in the middle of a two-day procedure.

    "This request is denied. All parties in this case have undoubtedly been aware of Dobbs since it was decided nearly two months ago," Osteen explained. "From that moment, the only reasonable conclusion to draw regarding this court's injunction was that it was patently contrary to the rule of law as determined by the Supreme Court. From then on, any reliance on this court's injunction to continue providing abortions after twenty weeks of pregnancy was not reasonable reliance. This court will not delay lifting its injunction to accommodate such unreasonable reliance."

    State House Speaker Tim Moore, R-Cleveland, responded to Osteen's decision. "Today a federal judge ruled that the injunction on North Carolina's 20-week abortion ban is 'patently contrary to the rule of law as determined by the Supreme Court' and should be lifted," Moore said in a prepared statement. "I am encouraged that, although our attorney general has failed to do his duty, today we have a ruling that upholds the law."

    Moore referenced N.C. Attorney General Josh Stein's refusal to defend the state's abortion law in court. Stein recused himself from the case. His N.C. Justice Department attorneys did not attempt to defend the state law after the U.S. Supreme Court announced its Dobbs decision.