UPDATE: On May 13, 2023, N.C. Governor Roy Cooper vetoed the bill described in this post. On May 16, 2023, the N.C. General Assembly overrode the veto and the bill became law (S.L. 2023-14). The changes to North Carolina abortion law that are described in this post will take effect on July 1, 2023. 

Last week the North Carolina General Assembly approved a bill (Senate Bill 20) that would create a new scheme for the regulation of abortion in North Carolina. Governor Roy Cooper has said he will veto the bill, and it is expected that the legislature will attempt to override the veto.

If enacted, the new provisions in the bill will take their places among an existing body of statutes that appear in multiple locations, including among the state’s criminal laws and the medical practice laws. The bill would leave some existing statutes untouched, while amending or replacing others and creating new ones. This post is primarily a summary of the changes, but I have also attempted to put those changes in context by explaining what would be different under the proposed legislation and what would remain the same.

Definition of Abortion; When Abortion is Lawful

What is the definition of abortion?

Senate Bill 20 defines “abortion” in a way that is substantially similar to the current statutory definition (G.S. 90-21.81), with two differences: it distinguishes between “surgical abortion” and “medical abortion,” and it clarifies that the removal of an ectopic pregnancy is not an unlawful abortion.

“Surgical abortion” would be defined as the use or prescription of an instrument or device to intentionally terminate a known pregnancy. Proposed G.S. 90-21.81(1c). “Medical abortion” would be defined as the use of medicines, drugs, or other substances to intentionally terminate a known pregnancy. Proposed G.S. 90-21.81(4e). Because both definitions require that the pregnancy be “known,” the definition of abortion does not appear to encompass any devices or medications that are used before pregnancy can be established. [FN 1] 

Both definitions would specifically exclude the intentional termination of a known pregnancy that is done for any of the following reasons:

• to increase the probability of a live birth;
• to preserve the life or health of the child;
• to remove an unborn child who died as the result of natural causes, accidental trauma, or criminal assault on the pregnant woman; or
• to remove an ectopic pregnancy.

The term “unborn child” is defined by reference to G.S. 14-23.1 and means “a member of the species homo sapiens, at any stage of development, who is carried in the womb.”

When is abortion legal in North Carolina under current law?

Two criminal statutes that date to 1881 establish a general rule that abortion is unlawful in North Carolina, but a third statute that dates to 1973 creates an exception for abortions up to 20 weeks of pregnancy, provided certain conditions are met. My colleague Jeff Welty described this general framework in a June 2022 post on the SOG’s NC Criminal Law Blog.

The 1881 laws are codified in Chapter 14 of the General Statutes. G.S. 14-44 makes it a Class H felony to administer, prescribe, advise, or procure for a woman who is “pregnant or quick with child” any “medicine, drug, or other substance” or to “use or employ any instrument or other means” with the intent “to destroy such child.” G.S. 14-45 makes it a Class I felony to administer, prescribe, advise, or procure for “any pregnant woman” a medicine or drug or to use an instrument with the intent to procure a miscarriage or to injure or destroy the woman. 

In 1973, the legislature adopted G.S. 14-45.1 (“the 20 weeks law”). Under this statute, abortion is not unlawful during the first 20 weeks of pregnancy, provided that the abortion is performed by a qualified physician who is licensed to practice in North Carolina and the abortion is performed in a hospital or clinic certified by the N.C. Department of Health and Human Services (NCDHHS). [FN 2]  Abortions after 20 weeks are permitted only in cases of medical emergency and must be performed in a hospital.

In addition, since 2011, abortion providers in North Carolina have been subject to a set of medical practice laws called the “Woman’s Right to Know Act.” G.S. Ch. 90, Art. 1I. Among other things, these laws require a provider to consult with each patient at least 72 hours before an abortion procedure and to provide certain information that is specified in law as part of the informed consent process. They also require the physical presence of the physician for both surgical and medical abortions. 

When would abortion be legal in North Carolina under the bill?

Sec. 1.1 of Senate Bill 20 would repeal the 20 weeks law. Sec. 1.2 would enact a new statute, G.S. 90-21.81B, to specify when abortion is lawful. The 1881 laws would remain on the books. This would seem to preserve the general scheme that abortion is unlawful in North Carolina when it falls outside the scope of what is permitted under the proposed new statute.

Under proposed G.S. 90-21.81B, abortion would be lawful under the following circumstances:

• During the first 12 weeks of pregnancy, when the procedure is performed by a NC-licensed qualified physician and occurs in a hospital, ambulatory surgical center, or clinic certified by NC DHHS to be a suitable facility in accordance with proposed G.S. 90-21.82A; or during the first 12 weeks of pregnancy when a medical abortion is procured.
• Through the 20th week of pregnancy when the pregnancy is the result of rape or incest as defined in the law, and the procedure is performed by a qualified physician in a suitable facility in accordance with proposed G.S. 90-21.82A.
• During the first 24 weeks of pregnancy if a qualified physician determines that the fetus has a life-limiting anomaly, as defined in the new law.
• When a qualified physician determines there exists a medical emergency, with no express limitations on the number of weeks of pregnancy.

The proposed new statute would be located in G.S. Ch. 90, Art. 1I—the current Woman’s Right to Know Act. The Article would be renamed “Abortion Laws” and would retain some aspects of the current Woman’s Right to Know Act, but with many new provisions, including those described above.

What would constitute rape or incest for the purpose of obtaining an abortion through 20 weeks? 

The bill defines both terms as “criminally injurious conduct in the nature of the conduct described” in certain statutes.

Rape would mean criminally injurious conduct in the nature of the conduct described in any of the following statutes: G.S. 14-27.21 (first degree forcible rape), 14-27.22 (second-degree forcible rape), 14-27.23 (statutory rape of a child by an adult), 14-27.24 (first-degree statutory rape), and 14-27.25 (statutory rape of a person who is 15 years of age or younger).

Incest would mean criminally injurious conduct in the nature of the conduct described in G.S. 14-178, which prohibits carnal intercourse with a person’s grandparent, grandchild, parent, child (biological or adopted), stepchild, sibling, half-sibling, aunt, uncle, nephew or niece.

Nothing in current law requires a patient who is pregnant due to rape or incest and seeks an abortion to disclose the rape or incest to either law enforcement or to the patient’s abortion provider.

Nothing in Senate Bill 20 would require a survivor of rape or incest to make a report to law enforcement in order for an abortion to be performed. However, under the new legislation, a patient might have to reveal the rape or incest to the physician performing the abortion. It would depend on when the abortion is performed.

If the patient who is pregnant as a result of rape or incest obtains an abortion during the first 12 weeks of pregnancy, the patient could choose to disclose the rape or incest to the physician but would not have to in order to be eligible to receive the abortion. After the 12th week of pregnancy, a patient who is pregnant as the result of rape or incest and seeks an abortion for that reason would need to disclose the rape or incest to the physician, and the physician would be required to record certain information and report information to NCDHHS. Proposed G.S. 90-21.81C. Among other things, the physician would be required to record the basis for the determination that the pregnancy resulted from rape or incest. [FN 3] 

The bill does not specify how a physician would make such a determination, other than providing the definitions of rape and incest. It seems notable that the bill’s definition of those terms doesn’t simply cite to the statutes creating the crimes of rape and incest but contains the additional language of “criminally injurious conduct in the nature of the conduct” described in those statutes (emphasis added). The meaning of this additional language is not clear, but one reasonable interpretation is that it is meant to include conduct that would constitute rape or incest, regardless of whether it is ever reported or prosecuted.

What would constitute a life-limiting anomaly for obtaining an abortion during the first 24 weeks? 

The bill defines “life-limiting anomaly” as the “diagnosis by a qualified physician of a physical or genetic condition that is (i) defined as life-limiting by current medical evidence and (ii) is uniformly diagnosable.” Proposed G.S. 90-21.81(4d).

Under the proposed legislation, if the abortion occurred after the 12th week and before the 24th week of pregnancy, the physician would be required to record certain information specified in a new statute, G.S. 90-21.81C, and report the information to NCDHHS. Among other things, the physician would be required to record the findings and analysis that supported the physician’s determination that a life-limiting anomaly existed. Nothing in current law requires such reports when an abortion is performed due to a fetal anomaly. 

What would constitute a medical emergency for the purpose of obtaining an abortion?

North Carolina’s current abortion laws define “medical emergency” as a condition which so complicates the medical condition of a pregnant woman as to necessitate immediate abortion in order to avert her death or avoid a serious risk of substantial and irreversible physical impairment of a major bodily function. The definition specifically excludes psychological or emotional conditions, including conditions that will cause the woman to engage in conduct which would result in her death or in substantial and irreversible impairment of a major bodily function. G.S. 90-21.81(5). Senate Bill 20 would retain this definition.

Under the proposed legislation, if the abortion occurred after the 12th week of pregnancy, the physician would be required to record certain information and make a report to NCDHHS, under proposed new G.S. 90-21.81C. Among other things, the physician would be required to record the findings and analysis that supported the physician’s determination that a medical emergency existed. 

Does North Carolina prohibit abortions based on the patient’s reason for seeking the abortion?

Under current law, a provider is prohibited from performing or attempting to perform an abortion if the provider knows or has an objective reason to know that the patient is seeking the abortion because of the sex of the fetus. G.S. 90-121.

Section 1.4(b) of Senate Bill 20 would add to the list of impermissible reasons for abortion and change the standard for when a provider must refuse to perform an abortion. It would prohibit an abortion when the provider has knowledge that the pregnant patient is seeking the abortion in whole or in part for any of the following reasons: the child’s sex, actual or presumed race or racial makeup, or the presence or presumed presence of Down syndrome.

72-Hour Advance Consultation & Informed Consent Requirements

Does North Carolina have a waiting period for abortion? Would that change?

North Carolina currently requires an advance consultation for an abortion, which must occur at least 72 hours before the abortion may be performed. This requirement is often described as a 72-hour waiting period. There is an exception for cases of medical emergency, as defined in G.S. 90-21.81(5).

Under current law, the advance consultation may be either in-person or by phone. Under Senate Bill 20, the consultation would be required to be in-person.

What must occur during the advance consultation?

During the advance consultation, a physician or other qualified professional must consult with the patient and convey certain information that is specified in the law. Under current law, the information that must be conveyed is the same for both medical and surgical abortions. G.S. 90-21.82.

Under Senate Bill 20, the specific information that must be conveyed would be different depending on which type of abortion was sought. Further, the bill specifies additional information that would be required to be conveyed if the abortion is sought due to a life-limiting anomaly.

When would a physician be required to be physically present during an abortion? 

The current law that establishes the informed consent requirements for abortion also includes a requirement that the physician performing a surgical abortion must be present during the entire abortion procedure. G.S. 90-21.82(b)(1). Senate Bill 20 retains this requirement.

Current law requires a physician who provides medication abortion to be physically present in the same room as the patient when the first dose of medication is administered. G.S. 90-21.82(b)(1). [FN 4] Senate Bill 20 would retain this requirement, but relocate it to a new statute, G.S. 90-21.83A. 

What are the informed consent requirements for abortions performed in North Carolina?

Current G.S. 90-21.82 provides that no abortion shall be performed without the pregnant woman’s voluntary and informed consent, and sets out the conditions that must be met for consent to an abortion to be considered voluntary and informed.

Senate Bill 20 would retain the substance of the current law and add further requirements. The bill would also distinguish between the informed consent requirements for surgical abortions versus medical abortions: amended G.S. 90-21.82 would apply to surgical abortions, while a new section, G.S. 90-21.83A, would apply to medical abortions.

Under the proposed legislation, both of those statutes would require the following:

• A 72-hour in-person advance consultation during which specified information must be conveyed orally. Current law has some of the same requirements regarding the oral communication of information, and allows the information to be provided by a tape recording. Senate Bill 20 would no longer allow the use of tape recordings to convey the information.
• A consent form with specified information, which would be somewhat different for surgical versus medical abortions (more information below), with the patient’s signature and initials on each entry, list, description, or declaration required to be on the consent form.
• An acknowledgment of risks and consent statement, signed and initialed by the patient and attesting to receipt of certain information (more information below).

Both statutes would also contain a new requirement that a physician sign a declaration form stating that prior to the abortion, the physician has explained in person the abortion procedure to be used, provided all of the information required, and answered all of the woman’s questions about the abortion.

The bill would also require NC DHHS to create the consent forms for surgical and medical abortion.

What would be required to be in the consent form for a surgical abortion?

Under current law, certain information must be communicated to a patient before an abortion is performed. If amended as proposed, G.S. 90-21.82 would require that the same information be included in a consent form for surgical abortion, which the bill would define as an abortion performed using instruments or devices. The specific information to be included in the form would be:

• The name of the physician who will perform the surgical abortion.
• The particular medical risks associated with the particular surgical procedures, including, when medically accurate, the risks of infection, hemorrhage, cervical tear, uterine perforation, danger to subsequent pregnancies (including the ability to carry a pregnancy to term), and any adverse psychological effects associated with abortion.
• The medical risks associated with carrying the child to term.
• The probable gestational age at the time the abortion is to be performed.
• The display of a real-time view of the unborn child and heart tone monitoring, plus information regarding printed materials and a website that contains phone numbers and addresses of facilities that provide these services free of charge.
• If the physician lacks liability insurance for malpractice in the performance or attempted performance of an abortion, that must be disclosed.
• The location of the hospital that offers obstetrical and gynecological care within 30 miles of the location where the surgical abortion is performed and at which the physician performing the abortion has clinical privileges. If the physician has no local hospital admitting privileges, that information must be communicated.

A proposed amendment to G.S. 90-21.82 would establish that a consent form for surgical abortion will not be considered valid, and informed consent will not be considered to have been obtained, unless the patient signs and initials each entry, list, or declaration required to be in the form. The proposed legislation would also require the physician to use a consent form created by NCDHHS, and to sign the separate qualified physician declaration described previously.

What would be required to be in the consent form for a medical abortion?

Under the bill, a “medical abortion” means an abortion performed using medicines or drugs. This is also known as a medication abortion. In the United States, the Food and Drug Administration (FDA) has an approved regimen for medication abortion that uses two medications administered separately: an initial dose of mifepristone, followed by a dose of misoprostol 24-48 hours later.

Proposed G.S. 90-21.83A would establish the requirements for a consent form for medical abortion. The information that must be communicated under current law to all abortion patients (medical and surgical) would be included, along with additional information that would not be required in a consent form for surgical abortions. Under the proposed new statute, a consent form for a medical abortion would be required to include all of the following:

• The name of the physician who will prescribe, dispense, or otherwise provide the medication.
• The probable gestational age, determined by both patient history and ultrasound results.
• A detailed description of the steps to complete the medical abortion.
• A detailed list of the risks related to the specific drugs to be used. The list must include hemorrhage, failure to remove all fetal tissue which could then require an additional procedure, sepsis, sterility, and possible continuation of the pregnancy. (Unlike the consent form for surgical abortion, there is no caveat that the information about risks must be conveyed only when medically accurate.)
• The medical risks associated with carrying the pregnancy to term.
• Information that the display of a real-time view and heart tone monitoring of the fetus are available to the pregnant woman, including information about facilities that offer these services free of charge.
• Information about Rh incompatibility, including that pregnant women with Rh-negative blood types could receive an injection of Rh immunoglobulin at the time of the abortion.
• Information about the risks of complications from medical abortion, including: incomplete abortion, increased risk associated with advancing gestational age [FN 5], and information that infection and hemorrhage are the most common causes of death related to medical abortion. [FN 6]
• Notice that the woman may see fetal remains in the process of completing the abortion.
• If the physician lacks liability insurance for malpractice in the performance or attempted performance of an abortion, that must be disclosed.
• The location of the hospital that offers obstetrical and gynecological care within 30 miles of the location where the medical abortion is performed and at which the physician performing the abortion has admitting privileges. If the physician has no local hospital admitting privileges, that information must be communicated.

The information from the consent form would also be required to be provided orally to the patient during an in-person consultation that occurs at least 72 hours before the medication is administered, and in which the physician and patient are able to ask questions of each other. Tape recordings conveying the information would not be permitted. If in the physician’s medical judgment, a physical examination, tests, or other information indicates that information previously supplied to the patient should be revised, then the revised information may be communicated to the patient at any time before the medical abortion—in other words, without a new 72-hour wait.

Proposed G.S. 90-21.83A would also provide that a consent form for medical abortion will not be considered valid, and informed consent will not be considered to have been obtained, unless the patient signs and initials each entry, list, or declaration required to be in the form. It also would require the physician to use a consent form created by NC DHHS and to sign the separate qualified physician declaration described previously.

What would be required to be on the acknowledgment of risks and consent statement for a surgical or medical abortion?

Proposed G.S. 90-21.83A (medical abortion) and the proposed amendments to G.S. 90-21.82 (surgical abortions) would both require an acknowledgment of risks and consent statement, signed and initialed by the patient and attesting to receipt of all of the following information, some of which is required to be provided in current law and some of which is newly required (indicated by a parenthetical at the end of the bullet point):

• That medical assistance benefits may be available for prenatal, childbirth, and neonatal care.
• That other public assistance programs may or may not be available.
• That the father is liable to assist in the support of the child.
• That the woman has other alternatives to abortion, including parenting or adoption.
• That the woman has been told about certain printed informational materials developed and maintained by NCDHHS, that describe fetal development and list agencies offering alternatives to abortion.
• That the woman is not being forced to have an abortion and has a choice not to have the abortion. (new)
• That the woman is free to withhold or withdraw consent to the abortion at any time before or during the abortion without affecting her right to future care or treatment and without the loss of any public benefits to which she is otherwise entitled.
• Attestation that the woman understands that the abortion is intended to end her pregnancy. (new)
• Attestation that the woman understands that the surgical or medical abortion has specific risks and may result in specific complications. (new)
• Attestation that the woman has been given the opportunity to ask questions about her pregnancy, the development of her unborn child, and alternatives to abortion. (new)
• Confirmation that the woman has been provided access to state-prepared printed materials on informed consent for abortion. (new)
• If applicable, that the woman has been given the name and phone number of a qualified physician who has agreed to provide medical care and treatment in the event of complications associated with the abortion. (new)
• Attestation that the woman has received or been given sufficient information to give informed consent to the abortion. (new)
• That the woman has a private right of action to sue the physician if she feels she has been coerced or misled prior to obtaining an abortion, and information about how to access state resources regarding her legal right to obtain relief. (new)
• A statement that the patient will be given a copy of the forms and materials with all signatures and initials that are required, and all other consent forms required by the state. (new)

Senate Bill 20 creates additional requirements for medical abortion, which are summarized later in this post in the section titled “Additional Requirements for Medical Abortion.”

What additional informed consent requirements would apply to abortions performed due to a life-limiting anomaly?

Senate Bill 20 would enact a new statute, G.S. 90-21.81D, establishing informed consent requirements for abortions that are performed due to a life-limiting anomaly. A physician would be required to provide all of the information that is required for a medical or surgical abortion, whichever was applicable. In addition, the physician would be required to provide all of the following information to the patient both orally and in writing:

• The basis of the determination that the diagnosis qualifies as life-limiting.
• The risks associated with the life-limiting anomaly.
• The risks associated with the medical, surgical, or other treatment used to perform the abortion.
• The information that life-limiting anomalies have resulted in live births of infants with unpredictable and variable lengths of life.
• Current medical evidence-based information on the life-limiting anomaly, including the likelihood and length of survival, if known.
• An offer of referrals for neonatal and perinatal palliative care consultations. The content of any such consultations is partially specified in the bill.
• Information regarding the woman’s options and spectrum of care, including:
  • The option of continuing the pregnancy;
  • The offer of referrals to perinatal palliative comfort care service providers, neonatal specialists, and other appropriate specialists as indicated by the particular anomaly; and
  • Information that such service providers can discuss options, including stabilization of the infant, transfer to the NICU, and support for the mother and family should they choose to continue the pregnancy.

The patient and physician would be required to sign and initial all of this additional information. The physician would be required to report certain information to NC DHHS, including specific information about the patient.

Additional Requirements for Medical Abortion

What additional requirements for medical abortion would the bill impose?

Senate Bill 20 would enact new G.S. 90-21.83B, titled “Distribution of abortion-inducing drugs and duties of physicians.” This section would create multiple new requirements for medication abortions that do not exist currently in North Carolina law and that are not part of the FDA’s approved procedures for medication abortion.

“Abortion-inducing drug” would be defined to mean a medicine, drug, or other substance prescribed or dispensed with the intent of terminating a clinically diagnosable pregnancy, including the off-label use of drugs such as mifepristone, misoprostol, and methotrexate. The definition also refers to the prescription or dispensing of these drugs when there is no diagnosed pregnancy so that they may be taken at a later date. The definition excludes drugs that may be known to cause an abortion but that are prescribed for other medical indications. Proposed G.S. 90-21.81(1a).

Proposed G.S. 90-21.83B would require a physician who prescribes, administers, or dispenses an abortion-inducing drug to examine the woman in person and do all of the following:

• Independently verify that the pregnancy exists and verify that the gestational age is no more than 70 days.
• Determine the woman’s blood type and offer any necessary medical services associated with Rh negative blood types.
• Provide any other medically indicated diagnostic tests, including iron or hemoglobin/hematocrit tests, to determine whether the woman has a heightened risk of complications.
• Document in the woman’s medical chart the probable gestational age, the intrauterine location of the pregnancy, and whether the woman received treatment for an Rh negative condition or any other diagnostic tests.
• Screen the woman for coercion or abuse and, if there is reason to believe the woman is being coerced into having an abortion, inform the woman of available services pursuant to existing G.S. 90-21.91. The physician must also refer the woman to an appropriate health care provider for treatment if medically necessary.
• Inform the woman that she may see the remains of her unborn child in the process of completing the abortion.

The physician or physician’s agent must also schedule a follow-up visit for the woman at approximately 7-14 days after administration of the abortion-inducing drug to confirm that the pregnancy is completely terminated and assess the degree of the patient’s bleeding. The physician must make all reasonable efforts to ensure the woman returns for the appointment and must document those efforts in the woman’s medical record.

Other Changes

What other changes does Senate Bill 20 make to North Carolina abortion law?

There is much more in Senate Bill 20 than I have covered in this post. Among other things, the bill would:

• Create new requirements for physicians who provide abortions to report specific information to NC DHHS, including information about the fetus and the pregnant patient.
• Provide that a physician who violates any provision of revised Ch. 90 Art. 1I would be subject to discipline by the North Carolina Medical Board, a pharmacist who violates any provision would be subject to discipline by the North Carolina Pharmacy Board, and any other health care provider who violates any provision would be subject to discipline by their licensing board.
• Create a new criminal offense of providing or advertising abortion-inducing drugs to a pregnant woman except as allowed by the proposed new abortion laws. Among other things, proposed new G.S. 14-44.1 would prohibit shipping abortion-inducing drugs directly to pregnant women or providing websites or other internet services solely to promote the sale of abortion-inducing drugs to be administered in violation of proposed G.S. 90-21.83A(b)(2)a.
• Create new requirements for the licensure of abortion clinics, which would be defined as freestanding facilities, neither physically attached to nor operated by a hospital, for the performance of abortions during the first 12 weeks of pregnancy.
• Enact the Born-Alive Abortion Survivors Protection Act. Under this law, in the event an abortion resulted in the expulsion or extraction of a fetus with a beating heart, pulsation of the umbilical cord, or movement of voluntary muscles, health care providers would be required to exercise the same degree of care to preserve life and health that would be rendered to a newborn of the same gestational age.

The bill also contains a number of provisions that are unrelated to the regulation of abortion.

Footnotes