Fact Check: NC Republican Wrong That Judge's Ruling Allows Abortions Up Until Delivery

There's a lot of talk about abortion laws in North Carolina, and a lot of it is inaccurate.

State lawmakers recently pushed for a bill that would impose new penalties on doctors who kill babies that survive an abortion.

As debate swirled around the bill, which Gov. Roy Cooper vetoed, some wrongly said infants have no legal protection in those circumstances. Opponents, meanwhile, wrongly suggested that the bill would've directly affected women.

Now, there's confusion over when abortions are legal in North Carolina. In March, a federal court ruled that the state's ban on women having abortions after the 20th week of pregnancy is unconstitutional.

On former Gov. Pat McCrory's June 4 radio show, House Speaker Tim Moore misrepresented the political background of the presiding judge in that case when he said “liberal federal judges” struck down the 20-week ban. District Judge William Osteen, who wrote the ruling, was appointed to the court by Republican President George W. Bush.

Moore then suggested that the ruling greatly loosened the state's abortion laws.

“Now in North Carolina under that law someone can get an abortion up until right before the baby is delivered,” Moore said.

Is it true that someone can now get an abortion “up until right before the baby is delivered?”

PolitiFact has checked several claims that abortion laws would allow babies to be aborted a minute before birth or “right up to the moment of birth.”

Those were exaggerations. And Moore's statement is too.

A ‘DISINGENUOUS' COMMENT

The landmark 1973 U.S. Supreme Court case Roe v. Wade established that women have a right to abortion up until the fetus is viable.

That means women can abort a pregnancy up until the point when the fetus can live outside its mother's womb. Or, viewed from the other side of the law, a woman cannot have an abortion after a fetus is deemed viable unless there are special circumstances.

When does viability occur? Each woman and pregnancy is different. Some fetuses grow fast. Some grow more slowly.

That's why the Supreme Court “defined viability in general terms and left it to individual physicians to apply the Supreme Court's definition of viability to each case,” said Katie Watson, associate professor of medical social sciences, medical education, and obstetrics and gynecology at Northwestern University's Feinberg School of Medicine.

Generally speaking, the medical community believes viability occurs sometime between 24 and 28 weeks, according to Laurie Sobel, associate director of women's health policy for the Kaiser Family Foundation.

Most pregnancies last between 37 and 40 weeks. So Moore's claim that women can now get an abortion “up until right before the baby is delivered” is “disingenuous,” Sobel said.

“No one would say a fetus is not viable at that state,” Sobel said.

An abortion would only happen that late in pregnancy if there's a fetal anomaly, she said. Even in those cases, she said many physicians would induce labor rather than abort the infant inside the womb.

DISTRUST OF DOCTORS

So, why did Moore suggest North Carolina now grants abortion until birth? Because state law doesn't define what it means for fetuses to be viable, Moore spokesman Joseph Kyzer told PolitiFact in an email.

The ruling gives physicians “sole discretion to determine a child's viability without any statutory definition for the term,” Kyzer's email said. “In the absence of a defined statutory standard for viability, this would allow an abortionist to perform the procedure up to and during the delivery of a baby that the abortionist judges to be non-viable.”

Moore's comments through Kyzer reflect a broad distrust of medical professionals on the abortion issue among Republicans across the nation. Other GOP-controlled states such as Alabama, Louisiana and Georgia have tried to bypass those professionals and instead ban abortions after specific weeks in the pregnancy timeline.

The email comments are misleading in that they ignore a legal standard that was set by Roe v. Wade.

“Moore suggests that bad situations will arise without a ‘defined statutory standard for viability.' However, the standard he seeks is unconstitutional,” Watson said. The judge “correctly quoted Roe v Wade and other Supreme Court decisions that do not allow state legislatures to create their own definitions of viability.”

So, Moore's original comments, which suggested that the federal judge's ruling changed abortion standards, are also inaccurate.

Through spokeswoman Laura Brewer, Democratic NC Attorney General Josh Stein pointed out that the court “enjoined enforcement of the statute only for pre-viability pregnancies. It doesn't change any existing precedent or law.”

OUR RULING

Moore said a judge's recent decision striking down North Carolina's ban on abortions after 20 weeks means women can now “get an abortion up until right before the baby is delivered.”

That's only true of fetuses with abnormalities or pregnancies that endanger the mother's health, a standard that already existed. Moore's statement contains an element of truth but ignores critical facts that would give a different impression. We rate it Mostly False.

This story was produced by the North Carolina Fact-Checking Project, a partnership of McClatchy Carolinas, the Duke University Reporters' Lab and PolitiFact. The NC Local News Lab Fund and the International Center for Journalists provide support for the project, which shares fact-checks with newsrooms statewide. To offer ideas for fact checks, email factcheck@newsobserver.com.