Monday, May 8, 2023

An Analysis of North Carolina's New Abortion Bill

By Rebecca J. Kreitzer

Editor’s note: with the high visibility regarding Senate Bill 20, which the North Carolina General Assembly introduced and passed last week, ONSP asked an expert on abortion policy, Dr. Rebecca Kreitzer, to offer her analysis on the bill and its potential impacts as a special contribution to the blog. Her views do not represent the opinions of her home academic institution.

Recently, the North Carolina General Assembly passed Senate Bill 20, a process that saw the bill's introduction to final adoption completed in less than two days. Ostensibly entitled "Care for Women, Children and Families Act," the first half of the bill restricts access to abortion in numerous ways before tacking on an assortment of policy changes to "improve infant and maternal health." However, the law's provisions make little impact on improving healthcare for women or children, and likewise it shouldn't be referred to as a "12 week abortion ban" because the restrictions on abortion begin earlier than 12 weeks and go far beyond gestational bans. 

In total, about 48 hours transpired between the content of the bill becoming public and the bill passing the Senate and getting sent to Governor Cooper –  notably shorter than the mandatory waiting period the law requires for patients seeking abortion to reflect on their decision. Governor Cooper will veto the bill. However, with State Representative Tricia Cotham becoming a Republican only months after campaigning on a platform of expanding access to abortion, the Republicans now have a slim veto-proof supermajority in both chambers to override the governor’s objections and make the bill law. Republican legislators in the General Assembly have maximized their chances at overriding a veto, including changing chamber rules to allow veto override votes to be taken without any prior notice. 

The speed at which sweeping changes to abortion were rushed through the legislature was facilitated by political trickery: transforming an existing 11-page bill on the safe surrender of unwanted infants into a 46-page bill that substantially curtails abortion access in North Carolina, as well as containing a hodgepodge of other initiatives apparently about maternal and child health, including the aforementioned 11-page bill on safe surrender of infants.

In the press conference announcing the new bill, as well as in floor debate in the House and Senate, it was clear that legislators on both sides of the aisle had insufficient time to understand an extremely complex bill. No Democrats were invited to participate in the drafting of the bill. The parliamentary switch of swapping the bill text via a committee report meant that legislators had limited time to raise objections or ask questions of the bill’s sponsor before the final vote was taken. And because the bill’s Senate sponsor admitted to receiving the bill text just days earlier, it was unclear that she could have answered such questions anyway. In other words, neither the sponsors, fellow legislators, physicians who would have to implement this law, or the general public understand this bill.

What is in SB20 about abortion?

The first half of the bill’s 46 pages are devoted to revising the state’s abortion policies, with a focus on four major revisions of abortion regulations.

Gestational Bans

The law (§90-21.81B) would allow in-clinic abortion procedures through 12 weeks. All abortion procedures after 12 weeks would need to be performed in a hospital setting, despite no evidence this is necessary or would improve health outcomes, which increases the cost of the procedure. The vast majority of abortions in NC and the country take place in out-patient clinical settings. North Carolina already requires that abortion clinics meet the standards of ambulatory surgical centers (which is a higher standard thus significantly increasing the cost of abortion), even though there is no difference in complication rates between abortions in clinical and ambulatory surgical settings

Medication abortion, wherein patients safely end their pregnancy at home after being administered two prescription medications, would only be allowed through 10 weeks (§90-21.83B). This requirement would remove a week of access to medication abortion. Since 2020, medication abortion has been the most common type of abortion in the US. The FDA currently authorizes mifepristone, the first of 2 drugs used in the most common medication abortion protocol, for up to 70 days (10 weeks) - but physicians regularly prescribe past 70 days based on data regarding safety and efficacy, and physicians prescribing medication “off-label” is common in general. More on medication abortion will be discussed later.

The law would allow abortion up to 20 weeks for rape or incest (§90-21.83B). While a police report for rape or incest would not be required, legal staff at the press release announcing the bill was careful to say a police report wouldn’t be required at this point (13:04 in the video). It’s worth noting that a state statute (§14-318.6) already requires providers to call police if they are treating a minor patient, which may dissuade minors from seeking abortion care if they fear interacting with police.

Abortions would be allowed up to 24 weeks where the fetus has a “physical or genetic” “life-limiting disorder by current medical evidence” that is “uniformly diagnosable” (§90-21.81D). However, the law also specifically bans abortion when the fetus has Down syndrome (§90-21.121), though this condition is both life-limiting and uniformly diagnosable.

The law allows for abortions to protect the pregnant person’s life (§90-21.81B), though these exceptions are narrower (§90-21.81 (5)). Abortions would be allowed when, in the “reasonable medical judgment” of the provider, an abortion is urgently needed to avert death, or where a delay will create “serious risk of substantial and irreversible physical impairment of a major bodily function, not including any psychological or emotional conditions.” The law makes it clear that someone at serious risk of suicide would not be allowed an abortion, as “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.”

It’s important to emphasize that the language regarding medical emergencies is ambiguous. It doesn’t specify how imminent or substantial the harm must be. Imagine a woman with hypertension (high blood pressure) at high risk for preeclampsia, which can be fatal, and can escalate quickly. She already has 3 children and knows she doesn’t want any more, and doesn’t want the risk of remaining pregnant (which may result in her dying and being unable to care for her children). If she isn’t yet sick, could the status of her pregnancy being high-risk qualify as a medical emergency or must her condition deteriorate until she is on the brink of death? Would this woman need to remain pregnant until she is crashing, like women in Texas and Oklahoma who are forced to wait in hospital parking lots or at home until medically ill enough to treat

Women are 14 times more likely to die in childbirth than die from an abortion. Some women’s “risk” of dying in childbirth is higher than others. For instance, women with certain comorbidities, like various heart and blood conditions, obesity, diabetes - as well as older women and lower-income women - are all more likely to die or nearly die. North Carolina has the 11th highest maternal mortality in the country. The causes of our maternal mortality crisis are complex and often linked to pre-existing medical risks, as well as systemic racism. In 2021, the maternal mortality rate for Black women in North Carolina was 69.9 deaths per 100,000 live births, compared to a rate of 26.6 for white women. 

Abortion Reporting Requirements: 

North Carolina law already requires that certain information about abortions be reported to the state. The new reporting requirements (§90-21.93), are onerous and raise serious concerns regarding patient confidentiality. After each abortion, a report must be submitted to the state that “shall contain, at a minimum, all of the following:” 1) identity of the physician and any referring physician, 2) the location, date and type of any surgical abortion or the location, date, and the location of “where any abortion-inducing drug is administered or dispensed”, including any healthcare facility, at the pregnant person’s home, or an other location, 3) the patient’s county, state, and country of residence, age and race; 4) the patient’s fertility history, including number of live births, previous pregnancies, and number of previous abortions; 5) patient’s pre-existing medical conditions; 6) probably gestational age of the fetus as determined by both patient history and ultrasound, and the date the ultrasound was done; 7) the abortion medications used and the date they were dispensed, administered and used; 8) whether the patient returned for the state-mandated follow up appointment, the results of that appointment, and the date; 9) the reasonable efforts of the provider to encourage the patient to attend the follow-up appointment; 10) any complication; and, 11) amount of money billed to cover the treatment for complications, including the diagnosis codes reported.

The law would also require that doctors inform the state when they suspect that they are treating a patient for an “adverse event” related to abortion (§90-21.93 (b-e)). Adverse event is defined as “untoward,” which is not a medical term, but presumably means unexpected. Expected complications include pain, bleeding and continued pregnancy - what would an “untoward” complication entail? Providers would need to report when the patient presented for the adverse event, the specific complication that arose as a “primary or secondary” result of abortion, and whether the patient obtained medication abortion pills in the mail.

This law invites providers to report to the state when they are treating someone with a suspected self-managed abortion §90-21.93 (e(3)). But self-managed abortions and miscarriages are indistinguishable in an emergency room setting - which means people may get reported to the state for seeking care for a miscarriage. Given well-established data indicating racial disparities in the policing of parenthood, it’s reasonable to assume women of color experiencing miscarriage will be more likely to be reported to the state than white women.

The law would require that doctors act as law enforcement, interrogating patients getting an abortion after 12 weeks (§90-21.81C(b)) about the reason they seek an abortion, so that it can be sent to the state alongside private medical information (the estimated gestational age, demographic information, and the number of previous pregnancies, live births and abortions she has received), as well as information about the doctor providing an abortion. If the abortion was needed because of a medical emergency, the report must explain the “findings and analysis” on which the doctor determined there to be an emergency. 

This requirement will lead to delays of urgently needed care in order to create a paper trail. If the patient is ending a pregnancy because of a life-limiting fetal anomaly, reports would also be required to provide information about the doctor that diagnosed the life-limiting anomaly (§90-21.81D). On an annual basis, clinics and hospitals would need to report “statistical summary reports concerning the medical and demographic characteristics of the abortions provided” (§90-21.81C(b)).

These reports will be aggregated by the NC Department of Health and Human Services to prepare a “comprehensive annual statistical report” that is made available to the public as a downloadable pdf (§90-21.93(f)). The law states that the reports shall not contain the patient’s name, “common identifiers”, or ID numbers (SSN or driver’s license) (§90-21.93(g)). However, the detailed information that is required listed above could be used to identify people. The proposed legislation fails to answer many questions about what will happen once these data are reported to the state: What will they do with that information? How will it be stored and protected to ensure patient confidentiality? Will the data be analyzed by the state, and if so, by which departments? Will the state allocate funding for the management of this data?

Informed Consent:

North Carolina already has laws in place to ensure that people seeking abortion give informed consent. Existing law already requires pregnant people be read a onerous state-mandated script 72 hours prior to abortion, which includes misleading and inaccurate information about the risks of complications from abortion, including the danger to subsequent pregnancies, and the ability to carry a fetus to term in the future, as well as the psychological effects of abortion. It packs in a lot of unnecessary information, such as that the father must pay child support if they continue the pregnancy, which is demeaning to patients in many circumstances, including when there are fetal anomalies or the pregnancy resulted from rape. 

For the record, pregnancy poses significantly higher risks to women than do abortions. Further, there is little evidence that safe abortion causes future infertility. There is also little evidence that abortion causes psychological trauma, in fact the opposite; the vast majority of women (>95%) do not regret their abortion. The new law would require this process take place in person, not over the phone for both surgical (§90-21.82) and medication abortions (§90-21.83A) - a requirement blatantly aimed at decreasing access by requiring people to make multiple visits, incurring even greater costs, as evidence suggests there is a benefit to allowing telemedicine informed consent rather than requiring in-person visits.

If the abortion is because of a fetal anomaly, the doctor providing an abortion must additionally (§90-21.81D) explain to the patient orally and in writing the basis of determination that the anomaly qualifies as life limiting; the risks associated with the life-limiting anomaly and risks associated with abortion; that life-limiting anomalies may result in live births with unpredictable and variable lengths of life; information about the life-limiting anomaly, including the likelihood of survival; provide referrals to neonatal and perinatal palliative care consultations; discuss all options with the patient, including continuation of pregnancy, referrals for palliative care and specialists, stabilization of an infant and transfer to Neonatal Intensive Care Unit - as well as all the information provided in the standard mandatory informed consent. 

A patient seeking an abortion due to fetal anomalies has almost certainly already had diagnostic testing and detailed conversations with their own physician. Forcing abortion providers to repeat all of this information with a patient, especially one confident in their choice to end their pregnancy, adds further trauma to people already wrestling with devastating news. Furthermore, this burdens abortion providers who are not all experts in complex fetal medicine. 

In 2011 the state passed a law that required a physician to place ultrasound images in view of the patient, and to read a state-mandated script to describe the images, even if the patient did not want to see or hear about the images. In 2014, a federal court blocked this law in the case of Stuart et al v. Camnitz, later affirmed in the 4th Circuit, as an unconstitutional violation of the 1st Amendment rights of physicians because it was an “impermissible attempt to compel these providers to deliver the state’s message in favor of childbirth and against abortion.” This law inserts new language (§90-21.85) to affirm that a pregnant woman has a right to view a real-time image of the ultrasound.

Medication Abortion

This law adds multiple new requirements for patients receiving medication abortions, which are extremely safe, and have substantially lower complication rates relative to abortion procedures and childbirth. The existing protocol for medication abortion involves the administration of two medications, mifepristone and misoprostol, taken at least 6 hours apart. The FDA does not require any in-person appointments to be prescribed mifepristone, and the FDA has never required in-person appointments for misoprostol. In recent years, telemedicine has expanded access to safe abortion to people across the country when in-person dispensing requirements for mifepristone were lifted, but not in North Carolina, which continued to mandate in-person appointments. This new law goes even further, requiring multiple in-person appointments (§90-21.83A and §90-21.83B). 

How many appointments must one attend to get a medication abortion? That answer is unclear. In Section ​​§90-21.81, the law defines an “abortion-inducing drug” as a medicine or drug dispensed with the intent to terminate a pregnancy, including “the off-label use of drugs such as mifepristone (Mifeprex), misoprostol (Cytotec), and methotrexate.” The law requires that informed consent take place, in person at least 72 hours before the medical abortion. In a later section of the law (§90-21.83A), it states that a physician “prescribing, administering, or dispensing” an abortion-inducing drug must first: verify the pregnancy, test blood type, run diagnostic tests for potential complications, screen the person for abuse, inform the patient she may “see the remains of her unborn child” (in less inflammatory language, a patient may see some bleeding, blood clots, and fetal tissue - depending how far along the pregnancy is), and verify gestational age before being administered the medication. The patient must then return for a follow-up appointment 7-14 days after “administration of the abortion-inducing drug” to ensure the abortion is complete (which can easily and cheaply be done with a home pregnancy test). How much effort must providers make to reach people who do not return for the appointment? The legislation fails to say.

The law requires, at a minimum, 3 in-person appointments with a physician. But there are many unresolved questions here: Would a patient need to return for a fourth visit, after taking mifepristone but before taking misoprostol (which are both identified by name as abortion inducing drugs)? How many visits would a pregnant patient with a fetus that is nonviable but still has cardiac activity, need to make? If she is only prescribed misoprostol, does she need any in-person appointments? These questions could be resolved with clarifications in the law - but the law was passed with minimal debate, and virtually no time for the sort of rigorous questioning needed to draft effective and well-written laws. 

Compounding issues with obtaining drugs used in medication abortion, North Carolina has a law that allows pharmacists to refuse to fill a prescription if doing so makes them complicit in behavior that is inconsistent with their personal morals. How will distinctions be made for women needing mifepristone and misoprostol for treatment of a pregnancy loss and those seeking a medication abortion? Pharmacists across the country are refusing to fill prescriptions for these medications, limiting access to health beyond abortion related care.

Even more abortion regulations

Under the new bill (§14-44.1), it would be unlawful for a provider or manufacturer of medication abortion pills to mail prescribed drugs as it would violate the requirement that abortion-inducing drugs only be administered in the physical presence of a physician. The bill would also make it unlawful for individuals and organizations to make an advertisement, have a website, or otherwise provide services in helping pregnant women who are a “resident of this State” obtain medication abortion pills – which raises concerns regarding the curtailment of the First Amendment right to free speech in line with the reawakening of the Comstock Act

There are also many unresolved questions here: how would this law be enforced? How does this affect out-of-state telehealth providers who may inadvertently prescribe to a North Carolinian? Will North Carolina become like Texas, a state where doctors speak in coded language to counsel patients lest they face criminal prosecution? 

Patients must also be told during informed consent for both medication (§90-21.83A) and procedural abortions (§90-21.82) that they have a private right of action to sue the physician who provided an abortion if she later feels she was misled or coerced. What if the patient feels coerced by the state government’s mandatory informed consent process, could they sue the state?

There's even more regulatory efforts regarding abortion policy, but these are the major components to the legislation, which is half of the total bill. Of course, North Carolina has existing restrictions on abortion that aren’t discussed in this post but would remain in effect.

What else is in SB20 that isn’t about abortion?

The bill started out as a bill not about abortion, and the last half of the bill contains a number of initiatives not about abortion (starts on page 25 of 46). There isn’t any good reason why all of these legislative initiatives are bundled together in this new law, and all of these legislative efforts could be brought before the chamber as stand-alone bills. More importantly, none of these will have a meaningful impact on maternal and child health.

Access to Contraception (less than ½ page): 

In Section 4.1, the law states an appropriation of $3,500,000 to be awarded over 2 years via competitive grants to nonprofit community health centers to make “long-acting reversible contraception” (LARC), such as the IUD or the contraceptive implant, available to underserved, uninsured or medically indigent patients. Improving access to LARC can significantly reduce unintended pregnancy and abortion. Expanding access to affordable LARC among lower-income women can broaden bodily autonomy – but it has to be offered thoughtfully through patient-centered counseling and shared decision making as there is evidence that providers are more likely to recommend IUDs to low-income Black and Latina women than white women, which is uncomfortably reminiscent of North Carolina’s racist eugenic sterilization program.

Medicaid Coverage of Obstetric Care (less than ½ page):

The Department of Health and Human Services will increase the Medicaid rate paid for obstetric care (Section 4.2.(a)) and incentivize group prenatal care services (Section 4.2.(b)). Medicaid pays for more than 4 in 10 births nationally and in North Carolina. Increasing Medicaid coverage and reimbursement rates for obstetric care is good, but this does little to address the long-term needs for someone who has been forced to continue an unwanted pregnancy and the children they may already have. 

Certified Nurse Midwives (~5 pages):

The bill regulates Certified Nurse Midwives (CNMs), including expanding qualifications, certification, and autonomy in their practice (Section 4.3.(a)). A bill was introduced by Democrats several weeks ago specifically to establish a Certified Professional Midwives licensing, though it hasn’t left the Committee on Health. Although SB20 would grant CNMs the expanded scope of practice that they have sought for decades, the NC Chapter of the American College of Nurse Midwives does not support this new bill because it is being tied to arbitrary abortion restrictions that they do not support. (The North Carolina Medical Society, the North Carolina Obstetrical and Gynecological Society and the North Carolina Academy Physicians also oppose the bill.)

Paid Parental Leave (1 page):

In Section 5.1.(a), full time state employees would get 8 weeks of paid leave when giving birth, and 4 weeks for other qualifying events (new biological child, adopting or fostering a child). Part time state employees would be eligible for more limited paid leave, not to exceed 4 weeks for a birthing state employee or 2 weeks for a non-birthing parent.

Paid parental leave is extraordinarily important. Paid parental leave policies significantly improve maternal physical and mental health, ease financial stress, allow for more bonding with the baby, and increase gender equality when fathers receive leave. The US is truly exceptional in its lack of unpaid or paid family leave. While it would be great for North Carolina to establish a paid parental leave policy, this leaves out most parents in NC in the private sector. There are approximately 75,000 people who work for the state, most of which are not women of child-bearing age - and this law would do nothing to provide paid (or even unpaid) leave for everyone else.

Safe Surrender of Infants (~11 pages)

The bill started out as a bill to expand North Carolina’s safe haven law and you can find the bill’s original content in Section 6.2.(a). The law would increase the time period in which unwanted infants may be surrendered to the state from 7 to 30 days, as long as there is no evidence of neglect or abuse. The law also outlines what happens after an infant is surrendered, including outlining duties and liabilities of those accepting a surrendered infant, as well as the process for attempting to contact the other parent (requiring 3 weeks of newspaper advertisements), among other things.

Safe-haven laws are good public policies, and evidence does suggest that they reduce infant homicide, however most infant homicides occur after the amnesty period. Safe-haven laws aren’t an alternative that eliminates the need for abortion; being pregnant and giving birth are still medically dangerous. 

Expanded Access to Childcare (~ ½ page)

Tuition for childcare in North Carolina is so high that it exceeds annual tuition rates for state universities. The average annual cost of infant childcare is $9,650— almost half of the yearly median income for a single NC mother. In Part 7 of the new law, the Department of Health and Human Services would increase the child care subsidy market rates to help low-income families making less than 200% of the federal poverty level afford childcare. However, there are 30,000 children aged 0-5 on the child care subsidy wait list, and only 10% of children eligible under federal guidelines are currently being served. Increasing the value of the subsidies will not increase the number of people receiving that assistance.

Expands Monitoring of Sexual Offenders (~ 1 page)

Part 8 of the bill states that Department of Adult Corrections shall do a risk assessment of sexual offenders who committed a crime that involved the physical, mental or sexual abuse of a minor. If the Department determines the offender requires the highest possible level of supervision, they may be enrolled in a satellite-based monitoring program for the life of the offender (previously 10 years).

Does SB20 improve maternal and child health?

No. Republican legislators argued the reasonableness of a 12-week gestational ban by pointing out that many other countries in the world have similar abortion bans. What those legislators failed to mention is that most of those countries have even worse maternal mortality than the US, which is already shockingly bad for a developed nation and getting worse

The countries with the lowest maternal mortality rates generally have less restrictive abortion laws than in NC’s new bill, including for abortions less than 12 weeks, and they tend to also have universal healthcare, subsidized child care, family leave policies for all laborers (not just those that work for the state government), comprehensive sex education, and a more supportive social welfare policy. In countries with the most restrictive abortion laws, abortions are often performed by untrained providers or use unsafe methods, making unsafe abortions one of the leading causes of maternal mortality. Within the US, maternal outcomes are worse in abortion restrictive states and maternal mortality is 3 times higher in states with abortion bans. Globally, the trend is moving towards legalizing abortion since it helps to reduce maternal mortality and morbidity

There are a few legislative initiatives in this law that may have some modest benefits for maternal and child health (parental leave, subsidized child care) - but those are unavailable to the vast majority of North Carolinians. On the other hand, there are a lot of elements of the law that may worsen maternal and child health.

More than 90% of all abortions happen in the first 12 weeks of pregnancy. Some people may think that because this law would allow most abortions before 12 weeks, that it doesn’t negatively impact that many people. But that isn’t true on multiple levels. First, those 7% of patients seeking abortion after 12 weeks are also valid; they seek abortions for compelling reasons, and they are deserving of healthcare. Some of the most common reasons people get later abortions include fetal anomalies, which usually cannot be diagnosed until at least 12 weeks, as well as needing to raise money for the procedure if it is not covered by insurance, finding childcare and getting time off from work for appointment, and getting to an abortion facility. Women who are using birth control methods that cause irregular periods and women who naturally have irregular periods may not realize they are pregnant within the first 12 weeks. Minors are also more likely to realize they are pregnant later and those without parental support may have to navigate the judicial system to get permission to have an abortion, meaning bans on abortion after 12 weeks force more adolescents and teens to become parents.

After the Dobbs decision and the polarization of state abortion laws, North Carolina became a safe haven for people traveling across the country seeking safe and legal abortion care. In the first few months after Dobbs, abortions rose by 37% in North Carolina, more than any other state, as our neighboring states passed increasingly restrictive laws. Appointment slots in NC are filled with people from around the country seeking care, making it harder for North Carolinian women to get quick appointments.

This law goes beyond merely banning abortion at a certain gestational point. It adds onerous burdens to physicians and patients while increasing the financial cost and logistical barriers to accessing abortion. Our country’s public policies are premised around the idea that people should not have children unless they can afford it, and then should pay for it privately. This law does very little to support “women, children, and families,” and most of these supports are only available to a small subset of North Carolinians. In the end, the bill is a draconian abortion ban that will harm maternal and infant health, and does little to help women forced to give birth.


Dr. Rebecca Kreitzer is an associate professor of public policy and an adjunct associate professor of political science at the University of North Carolina at Chapel Hill. Her research interests focuses on political representation of women in state legislatures, including work on ideological polarization among women partisans, the underrepresentation of Republican and non-white women, and how women legislate on women’s issues, as well as studying the inequalities experienced by certain groups as a result of public policy, including work on state abortion laws, contraception deserts, same-sex marriage, racial resentment, and the social constructions of politically relevant groups. She tweets at @rebeccakreitzer.

Dr. Kreitzer wishes to thank all who reviewed and suggested comments for this piece.

Editor's note: a section on Abortion Reporting Requirements was left out of the original post; it has been added.