Fact check: Limit on medication abortions is more complicated than Cooper makes it seem

Democratic Gov. Roy Cooper has been on the road this week to denounce the GOP bill, passed by the legislature, which would ban abortions after 12 weeks in North Carolina, with exceptions.

Cooper has said the bill “dramatically reduces women’s health care freedom” and that the fine print “effectively bans medication abortions at 10 weeks.”

So we took a look at the fine print.

We found that Cooper’s 10-week claim ignores a clear statement in the bill that doctors are able to use medication to perform abortions up to 12 weeks into a pregnancy. At the same time, he has a point: Another part of the bill, using language that is open to interpretation, requires that same doctor to verify that the patient is no more than 10 weeks pregnant.

What you need to know

Senate Bill 20 bans abortions after 12 weeks with exceptions up to 20 weeks for rape and incest, up to 24 weeks for “life-limiting” fetal anomalies, and without a limit if the mother’s life is in danger.

One part of the bill permits medical abortions during the first 12 weeks of a woman’s pregnancy so long as certain conditions are met, such as requiring women to attend in-person appointments.

The other part of the bill says that before “providing an abortion-inducing drug,” the physician, “shall” … “verify that the probable gestational age of the unborn child is no more than 70 days,” which is 10 weeks.

In the bill, medical abortions are defined as termination of a pregnancy with abortion-inducing drugs, including via the“off-label” use of drugs such as mifepristone, misoprostol and methotrexate.

Off-label use happens when drugs are prescribed for a different purpose than what the FDA approved.

The FDA approves the use of mifepristone, when taken with misoprostol, to end a pregnancy through 10 weeks of gestation.

But at least some providers, as part of that “off-label” use, say they provide medical abortions up to 11 weeks, or 77 days. That includes Planned Parenthood in North Carolina, the group said.

That means the difference between a 10-week requirement and a 12-week requirement could be potentially significant. So which is it?

70-day verification

Asked about the 10-week medication ban claims, Sadie Weiner, a spokesperson for Cooper, pointed to the 70-day verification requirement and language in the bill that says any provider “who violates any provision of this Article shall be subject to discipline” by their licensing board.

“Clinic operators and lawyers have made clear that they believe this bill prevents them from providing medication abortion after 10 weeks. Republicans either need to read the bill they wrote and voted for or stop drafting legislation in secret and ramming it through in 48 hours with absolutely no input from providers, doctors or the public,” Weiner wrote in an email to The News & Observer.

The GOP abortion bill, which was approved by both legislative chambers last week, has faced criticism for its speedy passage.

Asked about this 70-day requirement, Lauren Horsch, spokesperson for North Carolina Senate leader Phil Berger, pointed to the off-label language in the bill, saying in a written statement that the FDA approves mifepristone for medical abortions during the first 10 weeks of a woman’s pregnancy.

“The language mirrors that” FDA provision but it also “allows for the “off-label” use of an abortion-inducing drug – in this case after 10 weeks,” she wrote.

She also wrote a provider would “not face repercussions as long as he or she follows the informed consent provisions and does not perform an abortion unlawfully – after the first 12 weeks for medical abortions.”

The bill requires providers, at least 72 hours before the medical abortion, inform the woman in person and via a signed consent form of the probable age of the fetus, abortion risks and more.

Susanna Birdsong, general counsel at Planned Parenthood South Atlantic, said the bill is a 10-week ban. The 70-day verification requirement uses the word “shall,” she noted.

If that and other conditions are not met, “the physician shall be subject to discipline. The provision would therefore indeed eliminate a week of access to medication abortion that exists now,” she said.

If ”for example, the ultrasound estimates that it is 73 days — they cannot provide the medication abortion in compliance with the plain language of the bill, because they can’t verify that the pregnancy is under 70 days,” she said.

Veto override

In his travels this week, Cooper has targeted districts where lawmakers who voted in favor of the abortion bill had previously said they supported abortion rights.

Cooper will veto the abortion bill Saturday during a “Veto Rally for Health Care Freedom” in Raleigh.

An override of his veto is expected by Republican lawmakers, who have slim supermajorities in both legislative chambers and who have touted unity.