Judge Eagles' Ruling
Judge Eagles' Ruling
Judge Eagles' Ruling
The plaintiffs seek a temporary restraining order enjoining the defendants from
enforcing the entirety of Part I and one provision in Part II of North Carolina Session
Law 2023-14 governing abortions. See Doc. 11 (motion); Doc. 1-1 (the Act). The Court
has considered the pleadings, the evidence, the briefs, and the arguments of counsel made
The plaintiffs challenge the Act as unconstitutional for a number of reasons. The
challenges raised in the motion for a temporary restraining order fall into three
categories: (1) The hospitalization requirement for surgical abortions after 12 weeks
rights; and (3) Various inconsistencies in the Act make compliance impossible and are
unconstitutionally vague.1 After the complaint was filed, the legislature addressed many
of the inconsistencies and impossibilities challenged by the plaintiffs. See Doc. 26-1. A
bill amending the Act was passed by both the House and the Senate and signed into law
by the Governor. Some, but not all, of the plaintiffs’ challenges remain unresolved.
For purposes of resolving the motion for a temporary restraining order only, the
The plaintiffs’ motion for a temporary restraining order against the enforcement of
§ 90-21.82A(c), Doc. 1-1 at 21,2 which requires hospitalization for surgical abortions
after twelve weeks, will be denied. The parties agree that this provision does not go into
1
The plaintiffs made other arguments in the complaint, but those arguments need not be
addressed here.
2
Citations to the Act include both the section provided in the Act and the page number
appended by CM-ECF to the copy of the Act attached to the complaint, Doc. 1-1, or to the copy
of the amendments attached to the intervenors’ response. Doc. 26-1.
2
provision does not go into effect until October 1, 2023. Therefore, an immediate
hospitalization requirement can be heard after full briefing on the motion for a
preliminary injunction.
“Procure or Cause”
As originally enacted, the Act provided that “[i]t shall be unlawful after the twelfth
§ 90-21.81A(a), Doc. 1-1 at 4. The plaintiffs were likely to succeed on their claim that
intelligence,” Carolina Youth Action Project ex rel. Ford v. Wilson, 60 F.4th 770, 781
(4th Cir. 2023), cannot know if the prohibition on “advising” prohibits people from
helping others obtain lawful abortions in other states. To the extent that the advising ban
did prohibit people from helping others obtain lawful out-of-state abortions, the ban was
also highly likely to violate the First Amendment. See Reed v. Town of Gilbert, 576 U.S.
155, 163, 168 (2015) (noting content-based laws “are presumptively unconstitutional”
and that viewpoint-based laws are “a more blatant and egregious form of content
discrimination” (cleaned up)); Bigelow v. Virginia, 421 U.S. 809, 827–29 (1975)
(reversing conviction because the state could not make it a crime to advertise lawful
abortions in another state without infringing on the First Amendment); Conant v. Walters,
309 F.3d 629, 632, 637–39 (9th Cir. 2002) (upholding injunction prohibiting the federal
marijuana).
The Act as amended rewords this provision as follows: “It shall be unlawful after
the State of North Carolina.” § 90-21.81A(a), Doc. 26-1 at 26. As the plaintiffs pointed
out at the hearing, there is an argument that the amendment remains ambiguous as to
whether the “North Carolina” limitation applies to abortions or to the speech or acts
“procuring or causing” the abortion. If the statute were construed to prohibit speech or
acts in North Carolina that “procure or cause” a lawful abortion in another state, then the
plaintiffs would be likely to succeed on the merits of their First Amendment challenge.
But the statute can also be construed to avoid this problem, as all parties who took
a position agreed at the hearing. After the hearing, all parties stipulated that “none of the
The Court agrees with this construction. So construed, the ambiguities and First
Amendment issues raised by the plaintiffs are unlikely to rise to an unconstitutional level
The other challenged provisions of the Act as amended will go into effect on July
1, 2023. As the plaintiffs agreed during the recent hearing, many of the inconsistencies
and ambiguities identified by the plaintiffs in the original Act have been resolved by the
2. Providers are not required to verify that the gestational age is less than 70
hours do not restart if the name of the physician who will perform the
4. Providers are not required to inform the patient whether insurance will
5. Providers are not required to file complete reports for minors within three
days.
The amendments are likely to moot the plaintiffs’ vagueness challenges to the
provisions in the original Act directed to these matters. Because the plaintiffs are no
longer likely to be successful on the claims based on the original language of the Act, the
The plaintiffs do not agree that the amendment to the intrauterine location and
amendments modify this requirement. The law now provides that a “physician
Failing to comply with the intrauterine documentation requirement may carry the
intrauterine pregnancy makes the medical abortion unlawful, as the intervenors appeared
to contend at the hearing, then the physician’s actions are not excepted from the fetal
homicide statute. See N.C. Gen. Stat. § 14-23.7(1) (providing an exception to fetal
homicide if the acts “were lawful” under the laws regulating abortions). This warrants a
strict standard of review for vagueness. Manning v. Caldwell for City of Roanoke, 930
F.3d 264, 272–73 (4th Cir. 2019) (en banc) (noting a “stricter standard” applies to laws
carrying criminal penalties). Even if criminal penalties do not apply, failing to comply
discipline, thus warranting, at a minimum, a relatively strict standard. Id. at 273 (noting a
“relatively strict test” applies to quasi-criminal laws that have stigmatizing effects).
The plaintiffs are likely to succeed on their claim that the intrauterine
evidence at this stage establishes that patients often seek abortions early in pregnancy
pregnancy is in early stages and the physician cannot document the existence of an
intrauterine pregnancy, then the physician cannot comply with this requirement.
Elsewhere, the Act broadly allows abortions during the first twelve weeks of pregnancy.
See § 90-21.81B(2), Doc. 1-1 at 4–5. At the least, the Act as amended is ambiguous as to
whether a provider who cannot comply with the documentation requirement because it is
impossible is prohibited from proceeding with the medical abortion early in pregnancy.
On the record at this stage, the plaintiffs are likely to prevail on their claim that the
amended provision does not give fair notice as to what conduct is prohibited, and it does
Carolina Youth, 60 F.4th at 781. Thus, a temporary restraining order prohibiting the
additional briefing and development of the record in connection with the motion for a
preliminary injunction.
Irreparable injury will result to the plaintiffs if a restraining order is not granted
before the Act goes into effect tomorrow; the balance of equities favors protecting the
preserving the status quo until such time as the constitutionality of the provision can be
examined with the benefit of further briefing from the parties and intervenors. See
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (listing factors); Leaders of
a Beautiful Struggle v. Balt. Police Dep’t, 2 F.4th 330, 346 (4th Cir. 2021) (en banc)
(noting that if “there is a likely constitutional violation, the irreparable harm factor is
constitutional rights”).
The Court will waive the bond requirement in its discretion because the defendants
face little to no harm by being prohibited from enforcing a statute that is likely to be
found unconstitutional. See Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411,
421 n.3 (4th Cir. 1999) (noting that the amount of the bond “ordinarily depends on the
gravity of the potential harm to the enjoined party”); Pashby v. Delia, 709 F.3d 307, 332
(4th Cir. 2013) (recognizing that district courts have discretion to waive the security
requirement after “expressly address[ing] the issue of security before allowing any
waiver”), abrogated on other grounds by, Winter, 555 U.S. 7; Coreas v. Bounds, 458 F.
Conclusion
Under Federal Rule of Civil Procedure 65, the Court will grant the motion in part
and will temporarily enjoin the defendants from enforcing the requirement that
with a medical abortion. The temporary restraining order will expire in 14 days, subject
to an expected agreement by the parties to extend this Order to allow fuller briefing on
It is ORDERED that:
intrauterine pregnancy.”
§ 90-21.82A(c). Doc. 1-1 at 21. That provision does not go into effect
otherwise DENIED.
5. Upon notice, any violation of this Order while the same remains in force
showing.
7. This Order REMAINS in effect until noon on July 14, 2023, subject to
advisement. The Court will enter a scheduling order next week for
additional briefing.
__________________________________
UNITED STATES DISTRICT JUDGE
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