ANTI-CHOICE LAWS
Refusal to Provide Medical Services
ABORTION REFUSAL CLAUSE
North Carolina allows certain individuals or entities to refuse to provide abortion services.
To whom does the refusal clause apply? Physicians, nurses, hospitals, and other health care institutions.
What does the refusal clause allow? No physician licensed to practice medicine in the state and no nurse who objects on moral, ethical, or religious grounds may be required to participate in medical procedures that result in an abortion. The refusal of a physician to participate may not be a basis for civil liability, disciplinary action, or other recriminatory action. No hospital or other health care institution may be required to provide abortion services.
Does the law require the refusing entity to notify the persons affected? No.
Are there circumstances under which a refusal clause may not be exercised? No.
Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for abortion services? No.
Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause? No.
N.C. Gen. Stat. Ann. §§ 14-45.1(e), (f) (Enacted 1967; Last Amended 1997).
INSURANCE COVERAGE FOR CONTRACEPTION REFUSAL CLAUSE
Although North Carolina law requires health insurance plans that cover prescription drugs to provide equitable coverage for contraception, certain employers and/or insurers may require that their plans exclude coverage for contraception.
To whom does the refusal clause apply? Religious employers for whom prescription contraceptive drugs or devices are contrary to their religious tenets.
What does the refusal clause allow? A religious employer may require issuers of its health insurance plans to exclude coverage for contraception.
Is this refusal clause overbroad, jeopardizing insurance coverage for contraception for women? No. The law narrowly defines the term "religious employer" as a tax exempt entity that is organized and operated for religious purposes, has a primary purpose of inculcation of religious values, and primarily employs persons who share the religious tenets of the entity. This narrow definition is appropriately limited in scope, applying to religious entities but not broad-based entities that operate in the public sphere.
Does the law require that the persons affected by the refusal be notified? Yes. An insurer providing health benefit plans to a religious employer exercising a religious refusal must provide written notice of the exclusion to each insured. The notice must appear in the plan, application, and sales brochure for the plan.
Are there circumstances under which a refusal clause may not be exercised? Yes. A refusal clause may not be used to exclude coverage for prescription drugs ordered for reasons other than contraception or for prescription contraception that is necessary to preserve the life or health of an insured.
Does the law provide a mechanism for women to obtain contraceptive coverage if their employer exercises a refusal clause? No.
N.C. Gen. Stat. Ann. §§ 58-3-178, 58-50-155 (Enacted 1999).
PHARMACIST REFUSAL CLAUSE
North Carolina allows pharmacists to refuse to fill or refill prescriptions.
To whom does the refusal clause apply? Pharmacists.
What does the refusal clause allow? Pharmacists or dispensers of devices and medical equipment may refuse to fill or refill a prescription order if, in the pharmacist's professional judgment, it would be harmful to the recipient, is not in the recipient's best interest, or if there is a question as to its validity.
Does the law require the refusing entity to notify the persons affected? No.
Are there circumstances under which a refusal clause may not be exercised? No.
Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for prescription services? No.
Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause? No.
N.C. Admin. Code. tit 21, § 46.1801.
Restrictions on Low-Income Women's Access to Abortion
North Carolina prohibits funding for abortion for women eligible for state medical assistance for general health care unless the procedure is necessary to preserve the life of a woman endangered by a physical disorder, physical injury, or physical illness, including a life-endangering physical condition caused by or arising from the pregnancy itself, or the pregnancy is the result of rape or incest. Dep't of Health & Human Servs., Div. of Med. Assistance, Inpatient Hospital Servs., (Nov. 1999), at http://www.dhhs.state.nc.us/dma/hospital/5.pdf.
A woman who is not eligible for Medicaid and whose income is below the federal poverty level may obtain funds from the North Carolina State Abortion Fund to pay for an abortion only if the procedure is necessary to preserve her life or the pregnancy is the result of rape or incest. H.B. 397, 2003 Gen. Assem., 1st Sess. (N.C. 2003).
A court held that this restriction is constitutional under the North Carolina Constitution. Rosie J. v. N.C. Dep't of Human Res., 491 S.E.2d 535 (N.C. 1997).
Restrictions on Young Women's Access to Abortion
North Carolina law restricts young women's access to abortion.
Is the law enforceable? Yes. A federal court held that this law is constitutional. Manning v. Hunt, 119 F.3d 254 (4th Cir. 1997).
Who is considered a minor? A young woman under the age of 18 who has never been married or emancipated.
What is required - parental consent or parental notice? Consent.
Who must provide consent? One parent.
Are there other trusted adults who may provide consent instead? Yes, a grandparent with whom the young woman has been living for 6 months.
What is the process for obtaining consent? A young woman may not obtain an abortion unless the attending physician or another physician secures written consent from one parent or a grandparent.
May the parental mandate be waived if a young woman is a victim of rape or incest? No, unless a court finds that the young woman is a victim of rape or "felonious incest."
May the parental mandate be waived if a young woman is a victim of child abuse? No.
May the parental mandate be waived if a young woman's health is threatened? Yes, but only if the attending physician determines that a "medical emergency exists that so complicates the pregnancy as to require an immediate abortion."
May the parental mandate be waived under any other circumstances? Yes, the young woman may try to obtain permission from a judge.
If a young woman must obtain permission from a judge, what is the process? She must secure a court order stating that she is mature and well informed enough to make her own decision, that parental consent is not in her best interests, or that she is a victim of rape or "felonious incest."
Are there other significant requirements under the law? No.
Has a court considered the constitutionality of this law? Yes. A court denied a motion seeking a preliminary injunction of this law. Manning v. Hunt, 119 F.3d 254 (4th Cir. 1997).
Other information about the law: None.
N.C. Gen. Stat. Ann. §§ 90-21.6 (Enacted 1995; Last Amended 1998), 90-21.7, .9, .10 (Enacted 1995), 90-21.8 (Enacted 1995; Last Amended 2000).
Targeted Regulation of Abortion Providers (TRAP)
North Carolina imposes a variety of burdensome requirements on abortion providers that are not imposed on other health care providers, including:
Restrictions on Where Abortions May Be Performed
Among the most common TRAP regulations are those restricting the performance of abortions to hospitals or other specialized facilities, which place medically unnecessary and costly requirements on doctors and can decrease the availability of abortion care for women. North Carolina has such regulations, including:
Any non-hospital provider that performs abortions during the first 20 weeks of pregnancy must be "certified" as an abortion clinic. N.C. Gen. Stat. Ann. § 14-45.1(a) (Enacted 1967; Last Amended 1997); N.C. Admin. Code tit. 10A, r. 14E.0101(1).
A clinic must hire a registered nurse with experience in "post-operative or post-partum care" to be on duty in the clinic at all times when patients are in the facility. N.C. Admin. Code tit. 10A, r. 14E.0307. Exceptions are not provided for times when nursing services are not being performed, or when physicians and/or other medical personnel are present.
A clinic must include at least eighteen individual physical components, including its own laboratory and a "nourishment station" for "serving meals or in-between meal snacks." N.C. Admin. Code tit. 10A, r. 14E.0207.
North Carolina requires that all abortions after the 20th week of pregnancy be performed in a licensed hospital. N.C. Gen. Stat. Ann. § 14-45.1(b) (Enacted 1967; Last Amended 1997).
Restrictions on Who May Perform Abortions
North Carolina prohibits certain qualified health care professionals from performing abortions.
Only a physician licensed to practice medicine in the state may perform an abortion. N.C. Gen. Stat. Ann. §§ 14-45.1(a) - (b) (Enacted 1967; Last Amended 1997).
PRO-CHOICE LAWS
Contraceptive Equity
North Carolina law requires health insurance plans that cover prescription drugs to provide equitable coverage for contraception.
What is required? If a health insurance plan provides coverage for prescription drugs or devices or outpatient services, it must provide coverage for Food and Drug Administration-approved prescription contraceptive drugs or devices or outpatient contraceptive services, except for the emergency contraceptive Preven or any equivalent product.
To which insurance plans does the law apply? Insurers providing health benefit plans that are issued or delivered on or after January 1, 2000 that provide coverage for prescription drugs or devices or outpatient services.
Does the law provide additional protections for women? Yes. Such plans may not impose different deductibles, coinsurance, or limitations for contraceptive drugs, devices, or services from those imposed on other drugs, devices, or outpatient services. In addition, plans may not: (1) deny eligibility solely for the purpose of avoiding the contraceptive coverage requirement; (2) provide monetary payments to encourage an insured to accept less than the minimum coverage required by this section; (3) penalize or otherwise limit the reimbursement of a provider because he or she provided contraceptive drugs, devices, or services; or (4) provide incentives to encourage providers to withhold contraceptive drugs, devices, or services.
Does the law contain a refusal clause, allowing certain employers and/or insurers to refuse to provide or pay for contraceptive coverage? Yes.
To whom does the refusal clause apply? Religious employers for whom prescription contraceptive drugs or devices are contrary to their religious tenets.
What does the refusal clause allow? A religious employer may require issuers of its health insurance plans to exclude coverage for contraception.
Is this refusal clause overbroad, jeopardizing insurance coverage for contraception for women? No. The law carefully defines the term "religious employer" as a tax-exempt entity that is organized and operated for religious purposes, has a primary purpose of inculcating religious values, and primarily employs persons who share the religious tenets of the entity. This definition appropriately covers religious entities but not broad-based entities that operate in the public sphere.
Does the law require that the persons affected by the refusal be notified? Yes. An insurer providing health benefit plans to a religious employer exercising a religious refusal must provide written notice of the exclusion to each insured. The notice must appear in the plan, application, and sales brochure for the plan.
Are there circumstances under which a refusal clause may not be exercised? Yes. A refusal clause may not be used to exclude coverage for prescription drugs ordered for reasons other than contraception or for prescription contraception that is necessary to preserve the life or health of an insured.
Does the law provide a mechanism for women to obtain contraceptive coverage if their employer exercises a refusal clause? No.
N.C. Gen. Stat. Ann. §§ 58-3-178, 58-50-155 (Enacted 1999).
Low-Income Women's Access to Family Planning
North Carolina provides increased access to reproductive health care services through a Section 1115 research and demonstration waiver. The waiver, known as the "Be Smart" Family Planning Waiver, allows the state to provide family planning services to men ages 19-60 and women ages 19-55 with incomes at or below 185% of the federal poverty level, who would not otherwise qualify for Medicaid.
Beneficiaries of family planning coverage available through the waiver program are not required to pay premiums or co-payments for covered services. Covered services include: family planning annual examinations, periodic family planning office visits, most FDA-approved and Medicaid-covered methods of birth control, tubal ligations, vasectomies, and necessary post-procedure follow-up, STI screening and limited treatment, HIV testing, and laboratory tests associated with STI screening and family planning procedures including, but not limited to, pregnancy tests and pap smears.
The waiver will expire Sept. 30, 2010.
N.C. Dept. of Health and Human Servs., Div. of Medical Assistance, N.C. Medicaid Special Bulletin, May 2006 at http://www.dhhs.state.nc.us/dma/bulletin/FPW.pdf (last visited Dec. 5, 2008); NARAL Pro-Choice America Survey of State Medicaid Offices
Protection Against Clinic Violence
Any person participating in, affiliated with, or present as a spectator at a demonstration upon a private health-care facility or upon any public place and willfully or intentionally possessing or having immediate access to any dangerous weapon is guilty of a misdemeanor. N.C. Gen. Stat. Ann. §14-277.2 (Enacted 1981; Last Amended 1994). Any person who obstructs another person's access to or egress from a health-care facility in a manner that deprives or delays the person from obtaining or providing health-care services, or who injures or threatens another person who is providing, obtaining, or aiding another to obtain health-care services, is guilty of a misdemeanor. A third or subsequent conviction within three years of a prior conviction is punishable as a felony. Any person aggrieved may seek injunctive relief. A violation of an injunction obtained pursuant to this section constitutes criminal contempt punishable by imprisonment for 30 days to 12 months. N.C. Gen. Stat. Ann. §14-277.4 (Enacted 1993; Last Amended 1994). A court held that this law is constitutional. Hoffman v. Hunt, 126 F.3d 575 (4th Cir. 1997), cert. denied, 523 U.S. 1136 (1998). Any person engaging in targeted picketing of another individual's residence that causes fear for that individual's safety, the safety of the individual's family or personal associates, or creates substantial emotional distress is guilty of a misdemeanor. N.C. Gen. Stat. Ann. §14-277.4A (Enacted 2009).
OTHER LAWS
Post-Viability Abortion Restriction
North Carolina's post-viability abortion restriction provides that no abortion may be performed after 20 weeks of pregnancy unless there is a "substantial risk" that continuance of the pregnancy would threaten the woman's life or "gravely impair" her health. N.C. Gen. Stat. Ann. § 14-45.1(b) (Enacted 1967; Last Amended 1997).
NARAL Pro-Choice America supports the legal framework established in Roe v. Wade and does not oppose restrictions on post-viability abortions so long as they contain adequate exceptions to protect the life and health of the woman. NARAL Pro-Choice America opposes North Carolina's post-viability restriction because the health exception is dangerously narrow. NARAL Pro-Choice America further opposes this law because it is unconstitutional to the extent that it prohibits pre-viability abortions by defining viability at 20 weeks. A state may not prohibit abortion prior to viability, which is that point at which a fetus is capable of "meaningful life" outside of a woman's body. Roe v. Wade, 410 U.S. 113, 163 (1973). Because viability is a point that varies with each pregnancy, states may not declare that it occurs at a particular gestational age. Colautti v. Franklin, 439 U.S. 379, 388-89 (1979).
