Abortion demonstrators

Demonstrators at Capitol.

After the well-publicized leak of a draft decision from the U.S. Supreme Court, it appears a majority of the court could overturn the current federal precedent — as laid out in Roe v. Wade and Planned Parenthood v. Casey. The decision is likely to be released in May or June.

If the justices follow through on provisions of the draft opinion, states would begin to operate under rules of their own, whether already passed or new legislation inspired by the change in federal law.

The original 1973 Roe decision prevented states from regulating abortions to protect the life of the fetus until the third trimester of pregnancy. The 1992 Casey decision moved that trimester distinction instead to a viability distinction. Since then, states could not place an “undue burden” on women’s access to abortion until viability.

Working under this limited framework, North Carolina still passed a long list of laws regulating abortion. These include informed consent, which requires a 72-hour waiting period (§ 90-21.82); parental consent for minors to receive an abortion (§ 90-21.7); a ban on sex-selective abortions, when women choose to abort based on the baby’s sex (§ 90-21.121); a prohibition on selling fetal remains after an abortion (§ 14-46.1); and a ban on coverage of abortions through the health care exchanges created by the Obama administration’s Affordable Care Act (§ 58-51-63).

The state has also banned (§ 143C-6-5.5) any use of state funds for abortions as part “of any governmental health plan or government-offered insurance policy.” The statute makes exceptions if the mother’s life would be in danger or if the pregnancy was the result of rape or incest.

N.C. Family Policy Council President John Rustin told Carolina Journal in a May 10 interview that the state already had a lot of “good pro-life laws in place.” But he was hopeful that the legislature would take action in the upcoming short session to strengthen the state’s protections for the unborn once federal law allows that.

The current overarching law on abortion in North Carolina (§ 14-45.1) allows for abortions in the first 20 weeks of pregnancy in any hospital or clinic certified by the state for that procedure. After 20 weeks, abortions can only be performed in a hospital and only for emergency reasons.

“That statute was strengthened, I think in 2015, to add a pretty limited definition of medical emergencies — if it would gravely impair the life or the functionality of a major body organ of a pregnant woman,” Rustin said.

But in March 2019, U.S. District Judge William Osteen ruled that this law, virtually banning abortion after 20 weeks, violated the federal Casey precedent that no undue burdens be placed on women’s access to abortion before the child is viable outside the womb.

“So based on that ruling, the enjoining of that statute, basically abortions after 20 weeks are legal in North Carolina up to the point of viability,” Rustin said. “And tragically, the determination of viability is often made by the abortionist.”

But if the Supreme Court rules in the next few weeks in the Dobbs v. Jackson Women’s Health case that Mississippi’s ban on abortions after 15 weeks is constitutional, Osteen’s ruling on North Carolina’s medical-emergency definitions after 20 weeks would not likely stand, since it was based off the precedent from Roe and Casey.

“My understanding, after speaking with a number of attorneys, would be that because that 20-week case is still pending in federal courts, then a motion could be filed to essentially reinstate our 20-week ban,” Rustin said. “And then, of course, we would have to work legislatively to go beyond that.”

Democrat Governor Roy Cooper has a history of vetoing pro-life bills. Without a supermajority, pro-life legislators are unlikely to get any new abortion regulations passed in the current session. In an article published last week, Cooper told Axios he plans to make abortion a focus of the mid-term elections in November.

On the opposing side of Rustin and North Carolina’s pro-life movement, there is also a lot of energy from pro-choice groups in the state. Marches are planned in virtually all major cities over the next few weeks, demanding that access to abortion not be limited in the event of Roe and Casey being overturned.

Planned Parenthood South Atlantic and Women’s March are holding events in many cities across the state on the same day, saying, “On May 2nd, we learned from a leaked draft opinion that SCOTUS is poised to overturn Roe v. Wade, stripping the constitutional right to abortion in spite of fifty years of precedent. … We have to act NOW, all across the country. Together we will send a strong message that we’re not backing down. Supporting abortion access must be protected and defended.”

The Carolina Abortion Fund claims that it has raised $110,000 over just a few days, more than it typically raises in an entire month.

Both sides of the abortion debate in North Carolina are ready to fight over the state’s laws when the decision from the high court becomes official.

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Appeals Court to decide whether UNC System students can seek refunds from COVID semester

By Mitch Kokai, Carolina Journal

University of North Carolina System could be forced to refund portions of fees charged to students across the state in spring 2020, depending on the outcome of a case heard Tuesday morning at the N.C. Court of Appeals.

Five students and a parent sued the UNC System in May 2020. They argue that the university breached a contract to provide in-person instruction.

The plaintiffs are seeking partial refunds of tuition and fees charged for the semester that university campuses shut down because of COVID-19. Superior Court Judge Edwin Wilson dismissed their case in June 2021. The plaintiffs hope the Appeals Court will reverse that decision and allow the case to move forward.

“We have appellants that have completely performed under the contract,” said Blake Abbott, the attorney representing the students and parent. “They prepaid their tuition. They prepaid their fees. They know what they’re going to get, and that’s an on-campus education. But halfway through the semester, the university actually stops performing.”

“Instead of refunding appropriate amounts of tuition and fees and prepaid funds for meals, the university just elects to retain the money,” Abbott added.

The trial judge had multiple valid reasons for tossing the case last year, argued Jim Phillips, a private attorney representing the UNC System.

First, a state law approved in June 2020 (Senate Bill 208, Session Law 2020-70) specifically protected universities from the type of lawsuit the plaintiffs filed. Second, sovereign immunity blocks legal action against the university. Third, the plaintiffs failed to identify a contract that could have been breached.

“North Carolina law is clear that in the education context it is not enough to point to and rely on statements in websites, in handbooks, in bulletins, in marketing materials, and the like for the terms of a contract,” Phillips said.

Judge Allegra Collins asked Phillips whether students ever could sue UNC over a shutdown of in-person instruction. “You have a student who pays and enters UNC, and pays the tuition, pays the fees, pays the room and board, and one day UNC says, ‘We’re not doing this anymore — period,’” Collins said. “Is there a cause of action? Any cause of action? If so, what is the remedy in that situation?”

Phillips offered no answer.

“I think, quite frankly, that the university did a magnificent job here — transitioning to online and providing that semester’s education to these students,” Phillips said. “I think the General Assembly recognized it when it passed the immunity statute. This was a hard job, and the university pulled it off. None of us got exactly what we were used to paying for during COVID, but we got what I would consider to be — if there was a contract — substantial performance.”

Chief Judge Donna Stroud returned to Collins’ question, pointing to a hypothetical scenario in which the university shuts down without warning. “You only have two days of classes, and then they just stop,” Stroud said. “No valid reason. No hurricane. No anything. Hopefully, that would never happen. … But what would that claim be?”

“I think you would go to the North Carolina General Assembly and ask for them to make an appropriation to refund the money,” Phillips responded. “I don’t know if there’s some kind of claim. I am confident under North Carolina law it is not a contract claim.”

The suit titled Dieckhaus v. Board of Governors of the University of North Carolina could end up affecting students across the university system.

“Plaintiffs allege in their [complaint] that they and similarly [situated] students enrolled in an on-campus course of study at UNC, and prepaid tuition and various fees in exchange for Defendant’s promise to provide the unique benefits of an in-person, on-campus educational experience, including face-to-face academic instruction and a host of other services, extracurricular activities, and access to campus buildings and spaces,” according to a brief in the case.

“Plaintiffs also allege that they and similarly situated students paid significant sums for room and board. But when Defendant canceled in-person instruction and closed down campus in response to the COVID-19 crisis in March 2020, it refused to refund the tuition, fees, and room and board paid as consideration for this on-campus experience, breaching its agreement

with Plaintiffs and similarly situated students and unjustly enriching itself at the expense of its students.”

Lawyers representing the UNC System disagree in their Appeals Court filings.

“Plaintiffs do not identify any contract between themselves and the UNC System or any of the System’s constituent institutions,” according to a UNC brief. “Plaintiffs’ Amended Complaint acknowledges that a written contract does not exist, asserting that the terms of the purported contract ‘are as implied’ or as set forth in vague categories of documents like the University’s ‘website, academic catalogs, student handbooks, marketing materials and other circulars, bulletins, and publications.’ Plaintiffs identify no specific contractual provisions supporting their claims.”

“Plaintiffs’ Amended Complaint is at best a veiled educational malpractice claim — a legal claim roundly rejected in North Carolina,” UNC lawyers argued. “The crux of Plaintiffs’ claims is their contention that they were ‘deprived of the in-person, on-campus experience’ they allegedly paid for, and that the online classes and experiences provided in the final weeks of the Spring 2020 semester were less valuable than in-person classes. Plaintiffs are asking this Court to evaluate, assess, and weigh the University’s delivery of instruction, which it cannot do given the bar on educational malpractice claims in North Carolina.”

There’s no timetable for Stroud, Collins, and Judge Jeff Carpenter to issue a decision in the case.

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