A judicious, judicial approach to NC abortion lawsuit

Judge Catherine Eagles owes her seat on the federal bench to Barack Obama. The Democratic president occupied the White House when Eagles joined the US District Court in North Carolina in 2010.

For some partisans, the source of Eagles’ judicial appointment should dictate her approach to legal disputes involving political controversy.

Those partisans are wrong.

Eagles’ latest ruling in a challenge to North Carolina’s 2023 abortion law followed no partisan political playbook. The most committed anti-abortion activists are unlikely to support Eagles’ decision in its entirety. Abortion supporters will take little comfort in the decision from a jurist on their side of the partisan divide.

The July 26 decision followed earlier actions demonstrating Eagles’ unwillingness to tow a party line.

The Republican-led General Assembly enacted the abortion law in May 2023, overriding a veto from Democratic Gov. Roy Cooper. Its most notable provision outlawed most abortions after 12 weeks of pregnancy. No Democrat supported the measure.

Planned Parenthood South Atlantic and Dr. Beverly Gray, a Duke Health obstetrician and gynecologist, filed suit not long afterward. They challenged multiple pieces of the new law as unconstitutional.

Had Eagles decided to play the role of a clearly partisan judge, she could have sided completely with the plaintiffs. She could have struck down as much of the law as abortion activists targeted.

The judge did not follow that course. When Eagles issued a ruling in September 2023, she preserved much of the new law. The 12-week ban remained intact. The judge issued a preliminary injunction blocking two pieces of the law. One required hospitalization for all abortions performed after 12 weeks of pregnancy. The other required providers to document an intrauterine pregnancy before administering abortion drugs.

Ten months later, Eagles reversed herself on the hospitalization requirement. The US Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization guided her legal reasoning.

“The plaintiffs have offered credible and largely uncontroverted medical and scientific evidence that this requirement is unnecessary to protect maternal health and safety and will unnecessarily make such abortions more dangerous for many women and more expensive,” Eagles wrote. “But since the Supreme Court’s decision in Dobbs, there is no fundamental right to abortion, and the General Assembly need only offer rational speculation for its legislative decisions regulating abortion.”

Legislative leaders “have offered such speculation, and the plaintiffs have not negated every conceivable basis the General Assembly may have had for enacting the hospitalization requirement,” Eagles added.

Since the General Assembly put forward a “rational” explanation, “The requirement that surgical abortions after 12 weeks of pregnancy be performed in a hospital does not violate the plaintiffs’ constitutional rights to equal protection or due process,” Eagles concluded.

Commentary about the persuasiveness of the plaintiffs’ arguments suggests that Eagles disagrees with the hospitalization requirement as public policy. She has as much right as any other North Carolinian to agree or disagree with the General Assembly’s policy choices.

Partisan activists on the pro-abortion team might have expected Eagles to transform a policy disagreement into a legal victory for Planned Parenthood and Gray. If so, the judge surely disappointed the activists.

Regardless of her personal views about abortion in general — and the hospitalization requirement in particular — Eagles applied the Dobbs precedent and found that the provision could stand securely on constitutional ground.

Those who want to see that provision removed from state law will have to rely on the political process. Write a bill, then win enough support from lawmakers in Raleigh to make the change.

Contrast Eagles’ approach to the hospitalization requirement to her ruling on the “IUP provision.” While dropping her injunction against the hospital rule, she doubled down on the challenged restriction for medical abortions.

The requirement is “unconstitutionally vague,” Eagles wrote. “The requirement does not give medical providers sufficient notice of the required conduct, and it does not include sufficient standards to prevent arbitrary and discriminatory enforcement. Therefore, the statute violates the plaintiffs’ due process rights.”

Note that the judge’s objection did not focus on the merits of state lawmakers’ policy choice. She determined that providers would lack information to know whether they comply with the law. Regardless of the political context, “unconstitutionally vague” laws should face significant hurdles.

Either abortion supporters, state legislative leaders, or both could appeal Eagles’ decision. Her July 26 order might not represent the legal dispute’s final resolution.

For now, it’s worth noting that an important ruling in a hotly contested legal dispute did not follow a clear partisan playbook. That’s a clear victory for those who want judges to place the law ahead of political preferences.

Mitch Kokai is senior political analyst for the John Locke Foundation.