June 15, 1979
Subject:
Abortions, Physicians; Performance of Abortion After 20 Weeks of Gestation
Requested By:
Lewis H. Nelson, M.D. Assistant Professor Bowman Gray School of Medicine
Question:
If a woman at 22 weeks of gestation is found to have a genetically abnormal fetus which will be severely mentally retarded and/or will not survive beyond the first year of life, can an abortion be performed in North Carolina for these reasons alone upon request of the woman?
Conclusion:
No.
In North Carolina, statutory prohibitions against abortion take two forms: prohibition against destroying an unborn child (G.S. 14-44), and prohibition against producing a miscarriage or injury to a pregnant woman (G.S. 14-45). Significantly, most abortion litigation has been characterized by controversy over the dual considerations of the rights of the mother as contrasted with any rights of the unborn child. G.S. 14-44 and G.S. 14-45 would seem to reflect recognition of these two areas of consideration by the General Assembly. Interestingly — and possible indicative of the different gravamen of the two offenses statutorily created — the former offense is punishable by imprisonment extending up to ten years while the latter can bear up to five years imprisonment.
However, G.S. 14-45.1 sets forth exceptional situations wherein licensed medical doctors would be relieved of criminal liability in the performance of abortions. During the first 20 weeks of pregnancy, an abortion can be performed under statutorily prescribed conditions by a medical doctor upon request by a woman for any reason — or stated differently, without statement of reason by the woman. See, G.S. 14-45.1(a) and 46 N.C.A.G. 119 (1976).
On the other hand, G.S. 14-45.1(b) provides as follows:
"Notwithstanding any of the provisions of G.S. 14-44 and G.S. 14-45, it shall not be unlawful, after the twentieth week of a woman’s pregnancy, to advise, procure or cause a miscarriage or abortion when the procedure is performed by a physician licensed to practice medicine in North Carolina in a hospital licensed by the Department of Human Resources, if there is substantial risk that continuance of the pregnancy would threaten the life or gravely impair the health of the woman." (Emphasis supplied)
Presumably the differences in the authorization of abortions in G.S. 14-45.1(a) and G.S. 14-45.1(b) are based upon the United States Supreme Court’s recognition of an altered picture on the question of abortion at the time of possible viability of a fetus. See, Roe v. Wade, 401 U.S. 113 (1973) and Doe v. Bolton, 410 U.S. 179 (1973).
From the above-quoted statutory language, it is apparent that after the twentieth week of gestation, the prognosis of the condition of the expected child, as described in the question, standing alone will not serve to authorize an abortion under governing North Carolina Statutes.
Rufus L. Edmisten Attorney General
William F. O’Connell Special Deputy Attorney General