North Carolina

North Carolina

The pre-Roe statutes were based on § 230.3 of the Model Penal Code.^¹ Sections 14-44 and 14-45 prohibited all abortions.^² Section 14-45.1 excepted from the scope of §§ 14-44 and 14-45 abortions performed by licensed physicians in licensed hospitals when (1) there was “substantial risk that continuance of the pregnancy would threaten the life or gravely impair the health of [the pregnant woman],” (2) there was “substantial risk the child would be born with grave physical or mental defect,” or (3) the pregnancy resulted from incest or promptly reported rape.^³ The statutes did not place any express limitation on the stage of pregnancy at which an authorized abortion could be performed.^⁴

In May 1973, § 14.45.1 was substantially amended to conform to the Supreme Court’s decisions in Roe v. Wade and Doe v. Bolton.^⁵ Under current law, abortions may be performed after the twentieth week of pregnancy by licensed physicians in licensed hospitals only “if there is substantial risk that continuance of the pregnancy would threaten the life or gravely impair the health of the woman.”^⁶

The substance of the pre-Roe statutes would not be revived by a decision overruling Roe v. Wade. Abortions could be performed for any reason before the twentieth week of pregnancy and, depending upon how the post-twenty week statute is interpreted, for virtually any reason thereafter.^⁷

^¹ N.C. Gen. Stat. § 14-44 et seq. (1969).

^² Id. §§ 14-44, 14-45.

^³ Id. § 14-45.1. The statute imposed other conditions. Except in emergency cases, no abortion could be performed unless the attending physician and two other physicians examined the woman and certified in writing the circumstances which they believed justified an abortion. Id. If the woman seeking the abortion was a minor, the written consent of her parents or guardian was required, or her husband, if the minor was married. Id. There was also a residency requirement. Id.

^⁴ In a pre-Roe decision, a three-judge federal court rejected a challenge to the statutes. See Corkey v. Edwards, 322 F.Supp. 1248 (W.D. N.C. 1971), vacated and remanded, 412 U.S. 902 (1973).

^⁵ 1973 N.C. Sess. Laws 1057-58, ch. 711, §§ 1, 2.

^⁶ N.C. Gen. Stat. § 14-45.1(b) (1986).

^⁷ Because North Carolina’s statute on abortions performed after the twentieth week of pregnancy, see N.C. Gen. Stat. § 14.45.1(b) (2003), does not restrict such abortions to reasons relating to the pregnant woman’s physical health, it probably would allow abortions after that stage of pregnancy for reasons of the woman’s mental health, as well. There are few, if any, abortions that could not be justified on such grounds. As the experience in California demonstrated, mental health exceptions were widely abused. See People v. Barksdale, 503 P.2d 257, 265 (Cal. 1972) (noting that more than 60,000 abortions were reported in 1970, more than 98% of which were performed for alleged reasons of mental health).