Stein won't defend NC abortion law in court. New court filing explains why

North Carolina Attorney General Josh Stein won’t defend the state in a lawsuit over new abortion restrictions, he said Tuesday in a new court filing.

Stein, a Democrat, says he agrees with the group suing the state — reproductive care provider Planned Parenthood — saying that the law passed last month by the Republican-controlled legislature is unconstitutional. He said many parts of the law are impermissibly vague, and some parts of the law directly contradict other parts of it.

"The upshot is that doctors in North Carolina simply do not know what they can and cannot do without risking criminal liability," Stein wrote. And because of that and other issues he sees with the bill, he wrote, it violates constitutional guarantees of due process as well as the First Amendment.

The filing comes a day before the lawsuit is scheduled for a hearing in federal court over whether the law should be blocked while legal challenges play out. Stein said he supports that decision; GOP leaders say it's unnecessary.

As the state’s top law enforcement official, Stein is the lead defendant in the lawsuit and would normally be in charge of defending the abortion law. Republicans have accused him of making his decision not to defend the case for political reasons. Stein is running for governor in 2024.

“For him, based on his personal preferences, not to do that — I think that’s a failure on his part,” Republican Senate leader Phil Berger said Tuesday.

Stein’s brief lays out reasons why he says his decision is legal, not personal. It details multiple ways he believes the law violates the constitutional rights of women seeking abortions, as well as the health care professionals who might provide them.

The new restrictions, passed last month, would ban many abortions after 12-weeks, significantly less than the limit had been. Republican lawmakers sped the bill through the legislative process with no possibility for amendments.

Also Tuesday, the legislature passed a bill intended to clarify some of the issues Stein and other critics of the law have raised.

It's unclear if there's enough time for that to become law before Saturday, when many of the new abortion restrictions will go into effect. But GOP leaders — who have a veto-proof supermajority in both chambers of the legislature — wrote in their own court filing Tuesday that those changes will eventually become law even if Cooper vetoes them.

And once that happens, they wrote, those last-minute changes should clear up any constitutional questions about the law.

"The General Assembly is working to pass and enact, with or without the Governor's signature, a technical and conforming bill to make changes to clarify and address most, if not all, aspects of plaintiffs' claims about the act," House Speaker Tim Moore and Senate leader Phil Berger wrote in the filing.

There's a court hearing scheduled for Wednesday morning in Greensboro, where a federal judge will hear arguments over whether to temporarily block the law from going into place, at least while the lawsuit plays out.

Stein — long a supporter of abortion access — first announced he wouldn't defend the case Thursday in a Twitter post.

"I support women’s reproductive freedoms," Stein wrote. "After a thorough review of the case in Planned Parenthood v. Stein, I have concluded that many of the provisions in North Carolina’s anti-abortion law are unconstitutional. My office will not defend those parts of the law."

He had not offered any details until Tuesday's 23-page filing.

In addition to his concerns over the law being vague and occasionally contradictory, he said, it also violates past precedents that say people have to have "fair notice" that something has been made illegal.

Stein said the law was passed so quickly this year, with limited public debate, that there's a real chance some women seeking an abortion after 12 weeks — the new cutoff — won't know that it's illegal, since the limit has been double that for the last 50 years.

"Until last year, millions of women in North Carolina relied on having access to healthcare — and, specifically, abortion care — through the 24th week of pregnancy," Stein wrote. "No woman of childbearing age in North Carolina has ever before lived in a reality without this fundamental right. In 48 hours, and without the opportunity for public awareness or debate, the General Assembly stripped these millions of women of this right."

He added: "This sea change would have wrought confusion even if the implementing legislation were a model of clarity. But [the new abortion law] is the opposite, replete with inconsistencies and ambiguities, and with women and doctors in this State bearing the costs. Particularly in these circumstances, the public interest is served by preserving the status quo, at least until women and doctors have the clarity they need to continue accessing and providing reproductive healthcare."

There's precedent for the state's top lawyer to refuse to defend a case: In 2016 the attorney general at the time, Roy Cooper, was also running for governor. A Democrat like Stein, Cooper refused to defend in court a new law targeting transgender people's bathroom access, commonly called HB2. Republicans also attacked Cooper at the time for that decision, but it did not appear to cost him politically. He won the governor's race in 2016 and again in 2020.
Berger said Tuesday he thought it was wrong when Cooper refused to defend HB2 and thinks Stein’s decision not to defend the abortion law is also wrong. He noted that both decisions came in the middle of high-profile campaigns for governor.

“I would say that there’s at least some element of politics being played,” Berger said.