The Fourth Circuit Court of Appeals has struck down a North Carolina law prohibiting abortion after 20 weeks of pregnancy, a regulation based on research suggesting that unborn children can feel pain by that stage of gestation, if not earlier.
The three-judge panel of the Fourth Circuit ruled unanimously on behalf of several abortionists and Planned Parenthood South Atlantic, who sued the state over the restriction in 2016.
Almost unbelievably, North Carolina’s sole argument in defense of its law was that the state had no history of prosecuting abortion providers under the statute and thus that, because they face no credible threat of prosecution, they do not have standing to challenge the law. In other words, the state’s legal defense of its pro-life policy was, in essence, “We don’t actually plan to enforce the law, so violators can’t complain.”
Against this argument, the judges noted in their opinion that the abortion providers “had established a credible threat of prosecution sufficient to confer standing,” arguing that the historic lack of prosecution was not enough of a sign that the state wouldn’t prosecute going forward.
Had North Carolina made a stronger argument about lack of standing, perhaps their policy would’ve fared better. In several recent cases defending pro-life laws, states have noted that in Roe v. Wade, the Supreme Court found that a woman has a constitutional right to obtain an abortion, not that anyone has a right to perform abortions.
As a result of that fact, state officials argue, abortion providers and advocacy groups do not have standing to challenge pro-life laws and abortion regulations either on their own behalf or on behalf of women; women who claim to have been affected by pro-life policies must themselves challenge the statutes as having infringed on their right to abortion.
In last summer’s Supreme Court case June Medical Services v. Russo, lawyers arguing on behalf of Louisiana’s admitting-privileges law — eventually struck down by the Court — took this argument a step further. In their brief, they asked the Court to address the question of whether abortion providers have standing, observing that, in many cases, the interests of abortion providers and those of women are in fact in direct contention, such as when an abortionist flouts state safety regulations and puts a woman’s health at risk.