Mr. Casey:

We understand that you are concerned that some hospitals in North Carolina may be terminating pregnancies through abortion without insuring that the physician complies with North Carolina law. You have requested my legal opinion about North Carolina abortion law on the points stated below.

Under North Carolina, any abortion must be performed by a qualified physician and may not be performed, except in the case of a medical emergency, until a 72-hour waiting period has passed since the patient has been fully informed as to certain aspects.

I. In 2015 the North Carolina General Assembly limited the types of physicians who may terminate a pregnancy as follows:

§ 14-45.l(g),
(g)  For purposes of this section, “qualified physician” means (i) a physician who possesses, or is eligible to possess, board certification in obstetrics or gynecology, (ii) a physician who possesses sufficient training based on established medical standards in safe abortion care, abortion complications, and miscarriage management, or (iii) a physician who performs an abortion in a medical emergency as defined by G.S. 90-21.81(5).

II. There are time limitations on when an abortion may be performed. There is an exception for medical emergencies.

§ 90-21.81(5).
(5) Medical emergency. – A condition which, in reasonable medical judgment, so complicates the medical condition of the pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible physical impairment of a major bodily function, not including any psychological or emotional conditions. For purposes of this definition, no condition shall be deemed a medical emergency if based on a claim or diagnosis that the woman will engage in conduct which would result in her death or in substantial and irreversible physical impairment of a major bodily function.

Ill. Absent that exception the abortion may not be performed sooner than 72 hours after certain information is given to the woman upon whom the abortion is to be performed, and the information is given to her parent, if the patient is a minor. The information required by G.S.

90-21.82(1) and {2) does not have to be given by the doctor who will perform the abortion or his or her staff but may be given at another facility by a qualified professional. That certain information is as follows:

§ 90-21.82.Informed consent to abortion.
No abortion shall be performed upon a woman in this State without her voluntary and informed consent. Except in the case of a medical emergency, consent to an abortion is voluntary and informed only if all of the following conditions are satisfied:

1. At least 72 hours prior to the abortion, a physician or qualified professional has orally informed the woman, by telephone or in person, of all of the following:
   • The name of the physician who will perform the abortion to ensure the safety of the procedure and prompt medical attention to any complications that may arise. The physician performing a surgical abortion shall be physically present during the performance of the entire abortion procedure. The physician prescribing, dispensing, or otherwise providing any drug or chemical for the purpose of inducing an abortion shall be physically present in the same room as the patient when the first drug or chemical is administered to the patient.
   • The particular medical risks associated with the particular abortion procedure to be employed, including, when medically accurate, the risks of infection, hemorrhage, cervical tear or uterine perforation, danger to subsequent pregnancies, including the ability to carry a child to full term, and any adverse psychological effects associated with the abortion.
   • The probable gestational age of the unborn child at the time the abortion is to be performed.
   • The medical risks associated with carrying the child to term,
   • The display of a real-time view of the unborn child and heart tone monitoring that enable the pregnant woman to view he.r unborn child or listen to the heartbeat of the unborn child are available to the woman, The physician performing the abortion, qualified technician, or referring physician shall inform the woman that the printed materials and Web site described in G.S. 90-21.83 and G.S. 90-21.84 contain phone numbers and addresses for facilities that offer the services free of charge. If requested by the woman, the physicfan or qualified professional shall provide to the woman the list as compHed by the Department.
   • If the physician who is to perform the abortion has no liability insurance for malpractice in the performance or attempted performance of an abortion, that information shall be communicated.
   • The location of the hospital that offers obstetrical or gynecological care located within 30 miles of the location where the abortion is performed or induced and at which the physician performing or inducing the abortion has clinical privileges. If the physician who will perform the abortion has no local hospital admitting privileges, that information shall be communicated. If the physician or qualified professional does not know the information required in sub-subdivisions a., f., or g. of this subdivision, the woman shall be advised that this information will be directly available from the physician who is to perform the abortion. However, the fact that the physician or qualified professional does not know the information required in sub-subdivisions a., f., or g. shall not restart the 72-hour period. The information required by this subdivision shall be provided in English and in each language that is the primary language of at least two percent (2%) of the State’s population. The information may be provided orally either by telephone or in person, in which case the required information may be based on facts supplied by the woman to the physician and whatever other relevant information is reasonably available. The information required by this subdivision may not be provided by a tape recording but shall be provided during a consultation in which the physician is able to ask questions of the patient and the patient is able to ask questions of the physician. If, in the medical judgment of the physician, a physical examination, tests, or the availability of other information to the physician subsequently indicates a revision of the information previously supplied to the patient, then that revised information may be communicated to the patient at any time before the performance of the abortion. Nothing in this section may be construed to preclude provision of required information in a language understood by the patient through a translator.
2. The physician or qualified professional has informed the woman, either by telephone or in person, of each of the following at least 72 hours before the abortion:
   • That medical assistance benefits may be available for prenatal care, childbirth, and neonatal care.
   • That public assistance programs under Chapter 108A of the General Statutes may or may not be available as benefits under federal and State assistance programs.
   • That the father is liable to assist in the support of the child, even if the father has offered to pay for the abortion.
   • That the woman has other alternatives to abortion, including keeping the baby or placing the baby for adoption.
   • That the woman has the right to review the printed materials described in G.S. 90-21.83, that these materials are available on a State-sponsored Web site, and the address of the State-sponsored Web site. The physician or a qualified professional shall orally inform the woman that the materials have been provided by the Department and that they describe the unborn child and list agencies that offer alternatives to abortion. If the woman chooses to view the materials other than on the Web site, the materials shall either be given to her at least 72 hours before the abortion or be mailed to her at least 72 hours before the abortion by certified mail, restricted delivery to addressee.
   • That the woman is free to withhold or withdraw her 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 State or federally funded benefits to which she might otherwise be entitled. The information required by this subdivision shall be provided in English and in each language that is the primary language of at least two percent (2%) of the State’s population. The information required by this subdivision may be provided by a tape recording if provision is made to record or otherwise register specifically whether the woman does or does not choose to have the printed materials given or mailed to her. Nothing in this subdivision shall be construed to prohibit the physician or qualified professional from e-mailing a Web site link to the materials described in this subdivision or G.S. 90-21.83.
3. The woman certifies in writing, before the abortion, that the information described in subdivisions (1) and (2) of this section has been furnished her and that she has been informed of her opportunity to review the information referred to in sub-subdivision (2)e. of this section. The original of this certification shall be maintained in the woman’s medical records, and a copy shall be given to her.
4. Before the performance of the abortion, the physician who will perform the abortion or the qualified technician must receive a copy of the written certification required by subdivision (3) of this section.

Note: In Stuart v.Camnitz774 F. 3rd 238 4th Cir. {2014) the Fourth Circuit affirmed an injunction by Federal District Judge Eagles of G.S. 90-21.85. In her injunction order Judge Eagles construed G.S. 90-21.82 (as a saving construction) as follows:

“The information required by N.C. Gen. Stat.§ 90-21.82 may be provided by a physician or qualified professional, but a physician must be available to ask and answer questions within the statutory timeframe upon request of the patient or the qualified professional.”

§ 90-21.87.Informed consent for a minor.
If the woman upon whom an abortion is to be performed is an unemancipated minor, the voluntary and informed written consent required under G.S. 90-21.82 shall be obtained from the minor and from the adult individual  who  gives consent  pursuant  to G.S. 90-21.7(a). (2011-405, s. 1.)

IV. Failure to comply with the informed consent law subjects the doctor to a civil claim for damages, injunctive relief and attorneys fees, not only on suit by the woman upon whom the abortion was performed (or attempted) but also in the case of willful violations by her spouse, parent, sibling, guardian, certain healthcare providers, or by the Attorney General.

§ 90-21.88.Civilremedies.

1. Any person upon whom an abortion has been performed and any father of an unborn child that was the subject of an abortion may maintain an action for damages against the person who performed the abortion in knowing or reckless violation of this Article. Any person upon whom an abortion has been attempted may maintain an action for damages against the person who performed the abortion in willful violation of this Article.
2. Injunctive relief against any person who has willfully violated this Article may be sought by and granted to (i) the woman upon whom an abortion was performed or attempted to be performed in violation of this Article, (ii) any person who is the spouse, parent, sibling, or guardian of, or a current or former licensed health care provider of, the woman upon whom an abortion has been performed or attempted to be performed in violation of this Article, or (iii) the Attorney General. The injunction shall prevent the abortion provider from performing or inducing further abortions in this State in violation of this Article.
3. If judgment is rendered in favor of the plaintiff in any action authorized under this section, the court shall also tax as part of the costs reasonable attorneys’ fees in favor of the plaintiff against the defendant. If judgment is rendered in favor of the defendant and the court finds that the plaintiff’s suit was frivolous or brought in bad faith, then the court shall tax as part of the costs reasonable attorneys’ fees in favor of the defendant against the plaintiff.

Pursuant to G.S. 90-21.4 the Department of Health and Human Services maintains a website (www.wrtk.ncdhhs.gov) that provides even more information that the Department provides (also in print) required by G.S. 90-21.83 to wit.

§ 90-21.83.Printed information required.

1. Within 90 days after this Article becomes effective, the Department shall publish in English and in each language that is the primary language of at least two percent (2%) of the State’s population and shall cause to be available on the State Web site established under G.S. 90-21.84, the following printed materials in a manner that ensures that the information is comprehensible to a person of ordinary intelligence:
   • Geographically indexed materials designed to inform a woman of public and private agencies and services available to assist her through pregnancy, upon childbirth, and while the child is dependent, including adoption agencies. The information shall include a comprehensive list of the agencies available, a description of the services they offer, including which agencies offer, at no cost to the woman, imaging that enables the woman to view the unborn child or heart tone monitoring that enables the woman to listen to the heartbeat of the unborn child, and a description of the manner, including telephone numbers, in which they might be contacted. In the alternative, in the discretion of the Department, the printed materials may contain a toll-free, 24-hour-a-day telephone number that may be called to obtain, orally or by tape recorded message tailored to the zip code entered by the caller, a list of these agencies in the locality of the caller and of the services they offer.
   • Materials designed to inform the woman of the probable anatomical and physiological characteristics of the unborn child at two-week gestational increments from the time a woman can be known to be pregnant until full term, including pictures or drawings representing the development of the unborn child at two-week gestational increments. The pictures shall contain the dimensions of the unborn child, information about brain and heart functions, the presence of external members and internal organs, and be realistic and appropriate for the stage of pregnancy depicted. The materials shall be objective, nonjudgmental, and designed to convey only accurate scientific information about the unborn child at the various gestational ages. The material shall contain objective information describing the methods of abortion procedures employed, the medical risks associated with each procedure, the possible adverse psychological effects of abortion, as well as the medical risks associated with carrying an unborn child to term.
2. The materials referred to in subsection (a) of this section shall be printed in a typeface large enough to be clearly legible. The Web site provided for in G.S. 90-21.84 shall be maintained at a minimum resolution of 70 DPI (dots per inch). All pictures appearing on the Web site shall be a minimum of 200×300 pixels. All letters on the Web site shall be a minimum of 12-point font. All information and pictures shall be accessible with an industry-standard browser requiring no additional plug-ins.
3. The materials required under this section shall be available at no cost from the Department upon request and in appropriate numbers to any physician, person, health facility, hospital, or qualified professional.
4. The Department shall cause to be available on the State Web site a list of resources the woman may contact for assistance upon receiving information from the physician performing the ultrasound that the unborn child may have a disability or serious abnormality and shall do so in a manner prescribed by subsection (b) of this section.

V. A 2015 amendment changed the law relating to the gestational period within which an abortion may be performed. That period of time is limited to 20 weeks.

§ 14-45.1.  When abortion not unlawful.

1. 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.
2. Notwithstanding any of the provisions of G.S. 14-44 and 14-45, it shall not be unlawful, after the twentieth week 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 licensed by the Department of Health and Human Services, if there is a medical emergency as defined by G.S. 90-21.81(5).

By rule of the Department of Health and Human Services this 20 weeks commences after the last menstrual period (LMP) which would mean the time period ends approximately 18 weeks after fertilization.

10A NCAC14E .0101DEFINITIONS
The following definitions will apply throughout this Subchapter:

1. “Abortion” means the termination of a pregnancy as defined in G.S. 90-21.81(1).
2. “Gestational age” means the length of pregnancy as indicated by the date of the first day of the last normal monthly menstrual period, if known, or as determined by ultrasound.

The only exception to the 20-week limit is a medical emergency: G.S. 90-21.81(5), supra.

This is the same definition of medical emergency used in the partial-birth abortion case that was upheld by the United States Supreme Court in Gonzales v.Carhart,550 U.S. 124 (2007). This exception would be an extremely rare occurrence. If the exception is claimed the 2015 legislation requires that the records supporting the exception be transmitted to DHHS (with patient identifying information redacted).

§ 14-45.l(bl)
A qualified physician who advises, procures, or causes a miscarriage or abortion after the sixteenth week of a woman’s pregnancy shall record all of the following: the methocl used by the qualified physician to determine the probable gestational age of the unborn child at the time the procedure is to be performed; the results of the methodology, including the measurements of the unborn child; and an ultrasound image of the unborn child that depicts the measurements. The qualified physician shall provide this information, including the ultrasound image, to the Department of Health and Human Services pursuant to G.S. 14-45.l(c).

A qualified physician who procures or causes a miscarriage or abortion after the twentieth week of a woman’s pregnancy shall record the findings and analysis on which the qualified physician based the determination that there existed a medical emergency as defined by G.S. 90-21.81(5) and shall provide that information to the Department of Health and Human Services pursuant to G.S. 14-45.l(c). Materials generated by the physician or provided by the physician to the Department of Health and Human Services pursuant to this section shall not be public records under G.S. 132-1.

The information provided under this subsection shall be for statistical purposes only, and the confidentiality of the patient and the physician shall be protected. It is the duty of the qualified physician to submit information to the Department of Health and Human Services that omits identifying information of the patient and complies with Health Insurance Portability and Accountability Act of 1996 (HIPAA).

VI. Failure to comply with this gestational time limitation would subject the person performing the abortion to a class H felony charge under G.S. 14-44 or Class I felony under G.S. 14-45 since the exception under 14-45.l(b) would not apply.

Please ask me in writing for any clarification of this opinion that you need.

Sincerely yours,

Paul Stam