Amy Bryant v. Jim Woodall ( 2021 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-1685
AMY BRYANT, M.D., On behalf of herself and her patients seeking abortions;
BEVERLY GRAY, M.D., On behalf of herself and her patients seeking abortions;
ELIZABETH DEANS, M.D., On behalf of herself and her patients seeking
abortions; PLANNED PARENTHOOD SOUTH ATLANTIC, On behalf of itself,
its staff, and its patients seeking abortions,
Plaintiffs – Appellees,
v.
JIM WOODALL, In his official capacity as District Attorney (“DA”) for
Prosecutorial District (“PD”) 15B; SATANA DEBERRY, In her official capacity as
DA for PD 16; ELEANOR E. GREENE, In her official capacity as President of the
North Carolina Medical Board; MANDY K. COHEN, In her official capacity as
Secretary of the North Carolina Department of Health and Human Services; and their
employees, agents, and successors,
Defendants – Appellants.
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STATE OF WEST VIRGINIA; STATE OF ALABAMA; STATE OF ALASKA;
STATE OF ARIZONA; STATE OF ARKANSAS; STATE OF INDIANA; STATE
OF KANSAS; STATE OF KENTUCKY, by and through Governor Matthew G.
Bevin; STATE OF LOUISIANA; STATE OF MISSOURI; STATE OF
MONTANA; STATE OF NEBRASKA; STATE OF NORTH DAKOTA; STATE
OF OHIO; STATE OF OKLAHOMA; STATE OF SOUTH CAROLINA; STATE
OF TEXAS; STATE OF UTAH; GOVERNOR PHIL BRYANT, of the State of
Mississippi; THE NATIONAL CATHOLIC BIOETHICS CENTER; AMERICAN
ASSOCIATION OF PRO-LIFE OBSTETRICIANS AND GYNECOLOGISTS;
CHRISTIAN MEDICAL & DENTAL ASSOCIATIONS; AMERICAN COLLEGE
OF PEDIATRICIANS,
Amici Supporting Appellant.
LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW,
Amicus Supporting Appellee.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. William L. Osteen, Jr., District Judge. (1:16-cv-01368-WO-LPA)
Argued: May 6, 2021 Decided: June 16, 2021
Before MOTZ, DIAZ, and RICHARDSON, Circuit Judges.
Affirmed by published opinion. Judge Motz wrote the opinion, in which Judge Diaz and
Judge Richardson joined.
ARGUED: Michael T. Wood, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina, for Appellants. Genevieve Elizabeth Scott, CENTER FOR
REPRODUCTIVE RIGHTS, New York, New York, for Appellees. ON BRIEF: I. Faison
Hicks, Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellants. Andrew Beck, AMERICAN CIVIL
LIBERTIES UNION FOUNDATION, New York, New York, for Appellees. Beverly
Gray, M.D., and Elizabeth Deans, M.D. Julie Rikelman, Caroline Sacerdote, CENTER
FOR REPRODUCTIVE RIGHTS, New York, New York, for Appellee Amy Bryant, M.D.,
M.S.C.R. Maithreyi Ratakonda, New York, New York, Carrie Y. Flaxman, PLANNED
PARENTHOOD FEDERATION OF AMERICA, Washington, D.C., for Appellee Planned
Parenthood South Atlantic. Irena Como, ACLU OF NORTH CAROLINA, Raleigh, North
Carolina, for Appellees. Kevin H. Theriot, ALLIANCE DEFENDING FREEDOM,
Scottsdale, Arizona, for Amici The National Catholic Bioethics Center, Christian Medical
& Dental Associations, American Association of Pro-Life Obstetricians & Gynecologists,
and American College of Pediatricians. Patrick Morrisey, Attorney General, Lindsay S.
See, Solicitor General, Thomas T. Lampman, Assistant Solicitor General, OFFICE OF
THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for
Amicus State of West Virginia. Steve Marshall, Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF ALABAMA, Montgomery, Alabama, for Amicus State of
Alabama. Kevin Clarkson, Attorney General, OFFICE OF THE ATTORNEY GENERAL
OF ALASKA, Anchorage, Alaska, for Amicus State of Alaska. Mark Brnovich, Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF ARIZONA, Phoenix, Arizona,
for Amicus State of Arizona. Leslie Rutledge, Attorney General, OFFICE OF THE
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ATTORNEY GENERAL OF ARKANSAS, Little Rock, Arkansas, for Amicus State of
Arkansas. Curtis T. Hill, Attorney General, OFFICE OF THE ATTORNEY GENERAL
OF INDIANA, Indianapolis, Indiana, for Amicus State of Indiana. Derek Schmidt,
Attorney General, OFFICE OF THE ATTORNEY GENERAL OF KANSAS, Topeka,
Kansas, for Amicus State of Kansas. Matthew G. Bevin, Governor, OFFICE OF THE
GOVERNOR, Frankfort, Kentucky, for Amicus Commonwealth of Kentucky. Jeff
Landry, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF LOUISIANA,
Baton Rouge, Louisiana, for Amicus State of Louisiana. Phil Bryant, Governor, OFFICE
OF THE GOVERNOR, Jackson, Mississippi, for Amicus State of Mississippi. Eric
Schmitt, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MISSOURI,
Jefferson City, Missouri, for Amicus State of Missouri. Tim Fox, Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF MONTANA, Helena, Montana, for
Amicus State of Montana. Doug Peterson, Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF NEBRASKA, Lincoln, Nebraska, for Amicus State of
Nebraska. Wayne Stenehjem, Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF NORTH DAKOTA, Bismarck, North Dakota, for Amicus State of North
Dakota. Dave Yost, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
OHIO, Columbus, Ohio, for Amicus State of Ohio. Mike Hunter, Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF OKLAHOMA, Oklahoma City,
Oklahoma, for Amicus State of Oklahoma. Alan Wilson, Attorney General, OFFICE OF
THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for
Amicus State of South Carolina. Ken Paxton, Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF TEXAS, Austin, Texas, for Amicus State of Texas. Sean
Reyes, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF UTAH, Salt
Lake City, Utah, for Amicus State of Utah. Jon Greenbaum, Kristen Clarke, Dariely
Rodriguez, Edward Caspar, LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER
LAW, Washington, D.C., for Amicus Lawyers’ Committee for Civil Rights Under Law.
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DIANA GRIBBON MOTZ, Circuit Judge:
North Carolina abortion providers (“the Providers”) brought this action to challenge
as unconstitutional the State’s criminalization of previability abortions. The State officials
responsible for enforcement of the challenged statutes, N.C. Gen. Stat. § 14-44 and § 14-
45, and the exceptions thereto, § 14-45.1(a)–(b), do not defend the constitutionality of these
provisions on appeal. Rather, the State’s sole contention is that the Providers do not have
standing to bring this suit because they do not face a credible threat of prosecution for
violation of the challenged provisions. Like the district court, we disagree. Accordingly,
we affirm the judgment of the district court.
I.
North Carolina criminalizes the procurement or administration of abortion as a
felony, and has done so for the past 140 years. N.C. Gen. Stat. §§ 14-44, 14-45; 1881 N.C.
Sess. Laws 584. In 1967, the State enacted an exception to the abortion ban to permit
abortions performed in the case of a medical emergency. 1967 N.C. Sess. Laws 394; see
also N.C. Gen. Stat. § 14-45.1(b). Following the Supreme Court’s 1973 decision in Roe v.
Wade, 410 U.S. 113, the State enacted another exception to its abortion ban to permit
abortions performed before the twentieth week of pregnancy. 1973 N.C. Sess. Laws 1057–
58; see also N.C. Gen. Stat. § 14-45.1(a).
In 2015, the North Carolina legislature amended both the twenty-week exception,
codified at § 14-45.1(a), and the medical emergency exception, codified at § 14-45.1(b).
2015 N.C. Sess. Laws 135 (“2015 amendments”). The 2015 amendments modify § 14-
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45.1(a) to restrict the type of doctors permitted to perform abortions “during the first 20
weeks of a woman’s pregnancy” to “qualified physician[s],” which the amendments define.
Id. at 143.
The amendments to § 14-45.1(b) narrow the definition of a “medical emergency.”
Id. Prior to the amendments, the State permitted abortions where there was a “substantial
risk that the continuance of the pregnancy would threaten the life or gravely impair the
health of the woman.” Id. The amended version of the statute permits an abortion only
where one is “necess[ary] . . . to avert [the pregnant woman’s] death or for which a delay
will create serious risk of substantial and irreversible physical impairment of a major bodily
function, not including any psychological or emotional conditions.” N.C. Gen. Stat. § 90-
21.81(5); see id. at § 14-45.1(b). The revised medical emergency exception does not
permit an abortion based upon “a claim or diagnosis that the woman will engage in conduct
which would result in her death or in substantial and irreversible physical impairment of a
major bodily function.” Id. at § 90-21.81(5).
The 2015 amendments also extend from 24 to 72 hours the waiting period women
must observe before obtaining an abortion. The 2015 amendments further include a new
requirement that the Department of Health and Human Services (“the Department”)
annually inspect abortion clinics, and a mandate that abortion providers record and report
to the Department certain information, including fetal measurements and ultrasound
images. 2015 N.C. Sess. Laws 143–44.
North Carolina has not prosecuted any abortion providers under § 14-44 or § 14-45
since the 1973 amendments.
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In 2016, the Providers brought suit on behalf of themselves and their patients against
the State officials responsible for enforcing the challenged statutes (“the State”). The
Providers challenge “the statutes criminalizing abortion, N.C. Gen. Stat. §§ 14-44 and 14-
45, and the exceptions, § 14-45.1(a)–(b),” as violative of their patients’ Fourteenth
Amendment due process rights. The Providers moved for summary judgment, and the
district court ordered supplemental briefing to address the Providers’ standing in light of
North Carolina’s failure to prosecute pursuant to the challenged statutes.
Upon receipt of this briefing, in a careful opinion, the district court held that the
Providers had established a credible threat of prosecution sufficient to confer standing.
Bryant v. Woodall, 363 F. Supp. 3d 611, 617–627 (M.D.N.C. 2019). Then, finding that the
challenged statutes and exceptions prohibit some previability abortions in violation of the
requirements of Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833,
872–74 (1992), the district court awarded summary judgment to the Providers and enjoined
the State from enforcing N.C. Gen. Stat. § 14–45.1(a) as applied to previability abortions.
Bryant, 363 F. Supp. 3d at 627–31.
The State appeals, challenging only the Providers’ standing.
II.
We review de novo a district court’s ruling that a party possesses standing. Hill v.
Coggins, 867 F.3d 499, 505 (4th Cir. 2017).
To establish Article III standing, “the party invoking federal jurisdiction” must
demonstrate that it has (1) suffered an injury in fact, (2) that is fairly traceable to the
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challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable
decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). This three-part
test represents the “irreducible constitutional minimum of standing,” id. at 560, and federal
courts “may not pronounce on ‘questions of law arising outside’ of such ‘cases and
controversies,’” Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253, 267 (4th Cir. 2011)
(quoting Arizona Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 133 (2011)).
Accordingly, we must determine if the Providers have demonstrated that they may invoke
the courts’ jurisdiction.
Whether a plaintiff faces a credible threat of prosecution concerns the first prong
(“injury in fact”) of the Lujan test. To establish an “injury in fact,” a plaintiff must
demonstrate, among other things, “a realistic danger of sustaining a direct injury as a result
of the statute’s operation or enforcement.” Babbitt v. United Farm Workers Nat. Union,
442 U.S. 289, 298 (1979). However, “‘it is not necessary that [the plaintiff] first expose
himself to actual arrest or prosecution to be entitled to challenge [the] statute that he claims
deters the exercise of his constitutional rights.’” Id. (quoting Steffel v. Thompson, 415 U.S.
452, 459 (1974)) (alterations in original). “An allegation of future injury may suffice if the
threatened injury is ‘certainly impending,’ or there is a ‘substantial risk that the harm will
occur.’” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (quoting Clapper v.
Amnesty Int’l USA, 568 U.S. 398, 414 (2013)). A plaintiff faces “a credible threat of future
enforcement so long as the threat is not ‘imaginary or wholly speculative,’ Babbitt, 442
U.S. at 302, ‘chimerical,’ Steffel, 415 U.S. at 459, or ‘wholly conjectural,’ Golden v.
Zwickler, 394 U.S. 103, 109 (1969).” Kenny v. Wilson, 885 F.3d 280, 288 (4th Cir. 2018).
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With these principles in mind, we turn to the question of whether the Providers have
established such a credible threat of prosecution.
III.
A.
In contending that the Providers lack standing, the State principally relies on North
Carolina’s historic non-enforcement of the challenged statutes, arguing that this
demonstrates the unlikeliness that the statutes will be enforced against the Providers in the
future. The parties agree that North Carolina has not enforced § 14-44 or § 14-45 against
any abortion provider in nearly fifty years.
In Poe v. Ullman, the Supreme Court explained that persistent non-enforcement of
a statute can “deprive[] [a] controvers[y] of the immediacy which is an indispensable
condition of constitutional adjudication.” 367 U.S. 497, 508 (1961). The Poe plaintiffs
challenged a Connecticut ban on contraception that had been enforced only once in eighty-
two years. Id. at 501–02. A plurality of the Court believed, particularly given the persistent
and open violations of the ban, that this non-enforcement reduced the “dead words of the
written text” to “harmless, empty shadows,” and accordingly found no credible threat of
future enforcement. Id. at 502, 508. Under similar circumstances, we have followed this
approach. See Doe v. Duling, 782 F.2d 1202, 1204, 1206–07 (4th Cir. 1986) (threat of
prosecution under Virginia cohabitation ban was “only the most theoretical” where
violations were common and there were no recorded convictions in private homes in
previous hundred years).
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The State urges us to follow Poe here. However, doing so presents two difficulties.
First, the district court found that in this case there is no evidence of “open and notorious”
violations of the challenged statutes. See 363 F. Supp. 3d at 622–23. The State agrees that
there is no evidence that the Providers have performed illegal abortions. Thus, unlike in
Poe and Duling, we cannot assume the State’s acquiescence in violations of the law. As
we have previously explained, “[p]ublic policy should encourage a person aggrieved by
laws he [or she] considers unconstitutional to seek a declaratory judgment against the arm
of the state entrusted with the state’s enforcement power, all the while complying with the
challenged law, rather than to deliberately break the law and take his [or her] chances in
the ensuing suit or prosecution.” Mobil Oil Corp. v. Att’y Gen. of Commonwealth of Va.,
940 F.2d 73, 75 (4th Cir. 1991); see also 13B Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 3532.5 (3d ed. 1998) (“[C]itizens should be allowed to
prefer official adjudication to private disobedience.”). Establishing standing does not
require that a litigant fly as a canary into a coal mine before she may enforce her rights.
Second, the 2015 amendments cast doubt on whether North Carolina is truly
disinterested in enforcing its abortion laws. While Poe instructs courts to discount moth-
eaten statutes, laws that are “recent and not moribund” typically do present a credible
threat. Doe v. Bolton, 410 U.S. 179, 188 (1973); Kenny, 885 F.3d at 288. This is because
a court presumes that a legislature enacts a statute with the intent that it be enforced. Mobil
Oil Corp., 940 F.2d at 76; Doe, 410 U.S. at 188.
So too with amendments. In American Booksellers Association, Inc. v. Virginia, we
determined that plaintiffs had standing to challenge a Virginia statute prohibiting the
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display of sexually explicit material to minors because “[i]t would be unreasonable to
assume that the General Assembly adopted the 1985 amendment without intending that it
be enforced.” 802 F.2d 691, 694 n.4 (4th Cir. 1986), vacated on other grounds, 488 U.S.
905 (1988). On appeal, the Supreme Court agreed that the plaintiffs had standing to
challenge the statute. Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 393 (1988). 1
This suit was brought shortly after the 2015 amendments went into effect. Those
amendments modified North Carolina’s abortion laws in a number of respects. See 2015
N.C. Sess. Laws 135. But the State urges us not to apply a presumption of a credible threat
to these amendments because, it says, the amendments did not alter § 14-45.1(a), the
twenty-week ban. And because the Providers assertedly challenged only the twenty-week
ban, the State argues that the amendments to other aspects of North Carolina’s statutory
scheme regulating abortions are irrelevant. But the State’s premise is incorrect — the
Providers’ complaint is clear that it challenges both the twenty-week ban in § 14-45.1(a)
and the medical emergency exception in § 14-45.1(b), which everyone agrees was
amended. And although the core of the twenty-week exception remained unchanged as a
result of the 2015 amendments, the legislature did modify the text of the exception to
require the procedure be performed by a “qualified” physician. 2015 N.C. Sess. Laws 143;
1
In doing so, the Court noted that “[t]he State has not suggested that the newly
enacted law will not be enforced, and we see no reason to assume otherwise.” Id. We
recognize that in the case at hand, two of the defendants have made informal statements
indicating they have no present intent to enforce the challenged provisions; but those
statements are not binding and the other defendants have made no representations at all as
to their intent to enforce the challenged statutes. Accordingly, we hardly have reason to
assume the State will not enforce the challenged statutes. See infra Part III. B.
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see N.C. Gen. Stat. § 14-45.1(a). It is difficult to explain why the legislature would have
altered the text of the twenty-week ban if it did not expect for those words to ever be given
effect.
Viewing the amendments in the context of the statutory scheme further indicates
that North Carolina has a continued interest in enforcing the challenged statutes. The
amendments impose additional regulations on abortion providers by restricting who may
perform abortions and what information providers must report to North Carolina; the
amendments reduce the availability of abortion to women facing medical emergencies; and
the amendments extend the mandated waiting period women must observe before obtaining
an abortion. These changes do not evince an “undeviating policy of nullification” by the
State. Poe, 367 U.S at 502. Rather, the North Carolina legislature’s recent revisions to its
statutory scheme suggest that North Carolina has a renewed interest in regulating abortion.
And it is not alone. Abortion access remains a subject of lively debate in this
country: two other states presently ban abortions after twenty weeks; more than a dozen
states ban abortion at earlier dates; and nearly two dozen more states ban abortion at a later,
but previability, date. See Guttmacher Inst., State Bans on Abortion Throughout
Pregnancy, https://www.guttmacher.org/state-policy/explore/state-policies-later-abortions
(last accessed June 9, 2021). In 2013, 2015, and 2017, a twenty-week ban was considered
and passed in the U.S. House of Representatives. H.R. 1797, 113th Cong. (2013-2014);
H.R. 36, 115th Cong. (2015-2016); H.R. 36, 115th Cong. (2017-2018).
These bans are not “antique[s].” Duling, 782 F.2d at 1207. At the time the Providers
filed suit in November 2016, the political salience of the abortion debate was palpable.
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See, e.g., S.D. S.B. 72 (twenty-week ban proposed January 11, 2016, signed into law March
10, 2016); S.C. H.B. 3114 (twenty-week ban proposed January 13, 2015, signed into law
May 31, 2016); Ohio S.B. 127 (twenty-week ban proposed March 16, 2015, signed into
law December 13, 2016). The week after oral argument in this case, the Supreme Court
granted certiorari to address the constitutionality of Mississippi’s fifteen-week abortion
ban. Dobbs v. Jackson Women’s Health Org., 945 F.3d 265 (5th Cir. 2019), cert. granted,
No. 19-1392, 2021 WL 1951792 (U.S. May 17, 2021). And numerous other states have
enacted previability bans in recent weeks. See, e.g., Tex. S.B. 8 (“heartbeat” ban signed
into law on May 19, 2021); Idaho H.B. 366 (“heartbeat” ban signed into law on April 27,
2021); Mont. H.B. 136 (20-week ban signed into law April 26, 2021); Okla. H.B. 2441
(“heartbeat” ban signed into law on April 26, 2021); Ark. S.B. 6 (near total ban signed into
law March 9, 2021); see also S.61, 117th Cong. (2021–2022) (twenty-week ban introduced
in the U.S. Senate January 27, 2021). North Carolina’s neighbors are among the states
currently litigating the constitutionality of abortion restrictions. See, e.g., S.C. S.B. 1
(“heartbeat” ban signed into law on February 18, 2021; temporarily restrained February
19, 2021; preliminarily enjoined March 19, 2021, Planned Parenthood of S. Atl. v. Wilson,
No. CV 3:21-00508-MGL, 2021 WL 1060123, at *2 (D.S.C. Mar. 19, 2021)); Tenn. Code
Ann. § 39-15-202(a)–(h) (waiting period law, pending rehearing en banc, Bristol Reg’l
Women's Ctr., P.C. v. Slatery, 993 F.3d 489 (6th Cir. Apr. 9, 2021)).
As a nation we remain deeply embroiled in debate over the legal status of abortion.
While this conversation rages around us, this court cannot say that the threat of prosecution
to abortion providers who violate the law is not credible.
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Of course, the likelihood of future prosecution will always be difficult to predict.
Even in Poe, where there was nearly a century of non-enforcement despite open violations
of the law, the Supreme Court could only attempt to anticipate the likelihood of future
prosecutions. Such endeavors are hardly foolproof. Four years after it issued Poe, the
Court was confronted with the prosecutions of two doctors for selling contraceptives in
violation of the very same statutory provisions it had understood to be interred. Griswold
v. Connecticut, 381 U.S. 479 (1965). Here, where North Carolina’s continued interest in
regulating abortion remains vividly apparent — much more so than in Poe — we cannot
dismiss the threat of prosecution as “not remotely possible.” Babbitt, 442 U.S. at 299(quoting Younger v. Harris, 401 U.S. 37, 42 (1971)).
B.
Informal statements by two of the defendants that they do not presently intend to
enforce the challenged statutes do not alter our analysis. First, we note that two other
defendants (Greene and Cohen, of the North Carolina Medical Board and the Department,
respectively) have made no representations of their intent to enforce the challenged
statutes. Furthermore, the nature and content of the statements that have been issued are
insufficient to eliminate the threat of prosecution under the challenged statutes.
Defendant District Attorney Woodall sent the State’s counsel in this case an e-mail
stating that he has “no present intentions” of enforcing the challenged statutes in his
prosecutorial district. Defendant District Attorney Deberry co-wrote an opinion piece for
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the Washington Post advocating for prosecutors to use their discretion not to enforce laws
restricting access to abortion. Satana Deberry, Stephanie Morales & Miriam Aroni
Krinsky, Opinion: We Are Prosecutors. We Will Use Our Discretion on New Antiabortion
Laws, Wash. Post (June 7, 2019),
https://www.washingtonpost.com/opinions/2019/06/07/we-are-prosecutors-we-will-use-
our-discretion-new-antiabortion-laws. 2
Unofficial and non-binding statements such as these do not and “cannot override
the plain text of the [statutes] when it comes to establishing a credible threat of
enforcement.” EQT Prod. Co. v. Wender, 870 F.3d 322, 331 (4th Cir. 2017); see also
Virginia Soc’y for Human Life, Inc. v. Fed. Election Comm’n, 263 F.3d 379, 388 (4th Cir.
2001), overruled on other grounds by The Real Truth About Abortion, Inc. v. Fed. Election
Comm’n, 681 F.3d 544 (4th Cir. 2012) (holding a formal policy of non-enforcement that
“d[id] not carry the binding force of law” was insufficient to defeat standing). The
Providers have “no guarantee that [prosecutors] might not tomorrow bring [their]
interpretation more in line with the [statutes’] plain language.” N. Carolina Right to Life
v. Bartlett, Inc., 168 F.3d 705, 711 (4th Cir. 1999). In the meantime, they “will suffer from
the reasonable fear that [they] can and will be prosecuted.” Id. Thus, the Providers have
a right to insist that North Carolina comply with the Constitution — and so do their patients.
The State cites this opinion piece in its brief, but it does not appear in the record,
2
presumably because Defendant Deberry took office during the pendency of this lawsuit.
We take judicial notice of the fact of the publication of the piece. Fed. R. Evid. 201.
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IV.
Amidst a wave of similar state action across the country, North Carolina has enacted
legislation to restrict the availability of abortions and impose heightened requirements on
abortion providers and women seeking abortions. Given these facts, we cannot reasonably
assume that the abortion ban that North Carolina keeps on its books is “largely symbolic.”
Duling, 782 F.2d at 1207. Accordingly, we agree with the district court that the Providers
have established a credible threat of prosecution and therefore have standing to bring this
suit. The judgment of the district court is thus
AFFIRMED.
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