McCrory weighing appeal on ultrasound ruling

Posted by John Frank on January 22, 2014 

Gov. Pat McCrory remains undecided on whether North Carolina should appeal a federal judge’s ruling striking down the state’s ultrasound law.

His office issued a statement Wednesday without taking a position. “We respect the court’s decision and review of the process,” McCrory spokeswoman Kim Genardo said in the statement. She declined to answer further questions about whether the governor supported the law or whether McCrory would support a challenge to the judge’s ruling.

The 2011 law requires doctors to show women ultrasound images and describe them in detail between four and 72 hours before performing abortions. For two decades, the state has required an ultrasound for any patient scheduled for an abortion, but the ruling specifically focused on the narration doctors are required to provide.

U.S. District Judge Catherine Eagles, who was nominated to the court by President Barack Obama, described the clause as a “one-size-fits-all provision” that is “an impermissible attempt to compel these providers to deliver the state’s message in favor of childbirth and against abortion.”

Attorney General Roy Cooper has not yet decided whether to appeal. Spokeswoman Noelle Talley said the office is “reviewing the ruling, and will make the decision about an appeal in consultation with the governor and the legislature.”

Senate President Pro Tem Phil Berger, an Eden Republican, said Tuesday that he supports an appeal. House Speaker Thom Tillis appears to be leaning in the same direction. He said Saturday that he was disappointed in the decision and “could see the potential for the ruling going to the U.S. Supreme Court.”

The abortion issue is a sensitive one for the governor. McCrory is facing criticism for signing a law in 2013 that puts restrictions on abortions after pledging in the campaign not to do so.

With the political implications of the lawsuit, Cooper, lawmakers and the governor may disagree about how to proceed. Cooper would make the final call as the attorney for the state.

“This is one of those situations where given the nature of the issue, you could end up with conflict between the attorney general and legislative leadership ... but it’s probably not going to happen in this case because the attorney general already defended it in court and will most likely listen to the client,” said Michael Crowell, a professor at the UNC School of Government.

If Cooper chooses not to appeal, lawmakers could petition the court to intervene and keep the case alive. The lawmakers approved a measure in 2013 to give themselves the authority to petition the court, but it remains untested.

Crowell said the judge would have to grant the legislature’s attorneys standing, which is more unusual at this point in the case. “Trying to intervene on appeal would be odd,” he said.

A Tillis spokeswoman declined to discuss the case or the potential options available to lawmakers.

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