North Carolina’s “Life” Laws:
How North Carolina Views Life From the Womb to the Tomb
Family North Carolina MagazineJan/Feb 2008
by By John L. Rustin
The bumper sticker read, "LIFE...you can't live without it!" read the bumper sticker. While the driver seemed intent on proving the point to any fellow motorist who got in his way, the Yogi Berra-like quip conveyed a simple yet profound message-that life truly is fundamental to living.
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."1 Our nation's founders recognized this same truth about life, albeit in a very different document at a very different time. They deemed life not only as fundamental to living, but as a God-given gift worthy of the greatest level of respect and protection.
So which of these perspectives, if either, is a truer representation of where we are as a people and as a state today? Is life simply a state of existence that happens to be here one day and is gone the next, or is life something to be nurtured, esteemed and defended because it is an inalienable right given by the Creator?
One way to measure the value North Carolina places on human life-throughout all stages of the "womb to the tomb" continuum-is to examine the laws and policies that have been adopted and rejected by our state legislature and judiciary. Although these policies may not accurately reflect the personal philosophy of every citizen of the state, they do characterize the position of a majority of the individuals we have chosen to represent us at a given time, either in the North Carolina General Assembly or in the state courts. If we do not agree with these policy decisions, we have an opportunity to change them by attempting to influence the individuals who make them. If the results of those efforts are not satisfactory, then we can seek to replace them. Of course, judges who render decisions in our federal courts are not elected, but instead are nominated by the President and confirmed by the U.S. Senate. Considering the broad sweeping impact federal court opinions have on the states, it is no wonder that federal judicial appointments have become such a focal point in recent presidential elections.
In the Beginning . . .
When does life begin? At fertilization, conception, viability to live outside the womb, at the time of birth?
The North Carolina Supreme Court attempted to answer this question in 1981 when it determined that an unborn child is not a "person" according to its interpretation of the North Carolina Constitution. In its opinion in Stam v. State,2 the court affirmed a ruling by the North Carolina Court of Appeals, which held that "a fetus is not a 'person' within the meaning of Article I, Sections 1 and 19 of the Constitution of North Carolina."3 Consistent with the Declaration of Independence quoted at the opening of this article, these provisions in our State's founding document read as follows:
Section 1. The equality and rights of persons. We hold it to be self-evident that all persons are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.
Sec. 19. Law of the land; equal protection of the laws. No person shall be taken, imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land. No person shall be denied the equal protection of the laws; nor shall any person be subjected to discrimination by the State because of race, color, religion, or national origin.
In Stam v. State, the court acknowledged that abortion had been a criminal offense in North Carolina since the 1700's. It even recognized that an unborn child possesses full inheritance rights under North Carolina law "in the same manner as if he were born." Nonetheless, the Supreme Court upheld the Appeals Court's finding that "the crime [of abortion] was not murder, the taking of a person's life, but the destruction of the potentiality of life."4
Nearly 35 years ago, the U.S. Supreme Court's landmark 1973 decisions in Roe v. Wade5 and Doe v. Bolton6 legalized abortion on demand in the United States. While these rulings fundamentally changed the prevailing law in this country, states have maintained the ability to regulate and restrict abortion in many ways.
Generally: North Carolina adopted the English common law in the early 1700's, which recognized abortion as a criminal offense. In 1880, the N.C. Supreme Court classified abortion as a misdemeanor,7 and the next year, the N.C. Legislature raised the offense of abortion to a felony when it enacted laws against "using drugs or instruments to destroy [an] unborn child"8 and "using drugs or instruments to produce miscarriage or injure [a] pregnant woman."9 While these laws remain on the books today, the General Assembly passed a measure in 1967 to allow an abortion to be performed by a licensed physician in a hospital or certified clinic in the state during the first 20 weeks of a woman's pregnancy for any reason, and to permit an abortion after the twentieth week of a woman's pregnancy "if there is substantial risk that continuance of the pregnancy would threaten the life or gravely impair the health of the woman."10
Informed Consent: North Carolina's current abortion law, many would argue, is written to favor abortion providers over the women and unborn children who are the subjects of abortion. For over a decade, efforts have been made to require abortion providers to ensure that women considering an abortion are fully informed, just as they would be with any other invasive medical procedure.11 According to these proposals, at least 24 hours prior to the abortion, the physician would inform the woman about the procedure to be used, the short- and long-term risks, alternatives to abortion, the probable gestational age of the unborn child, the name of the physician who will perform the procedure, and other basic details. Another measure, introduced in the General Assembly in 2007, would require abortion providers to offer women the opportunity to view an ultrasound of the unborn child before having an abortion.12 Statistics indicate that up to 89 percent of abortion candidates who receive counseling and view an ultrasound decide to carry their babies to term.13 While such laws would help to ensure that women in North Carolina do not make decisions under stressful circumstances that they may later regret, none of these proposals have gained the approval of the state legislature.
Taxpayer Funding: Many North Carolina citizens strongly oppose abortion on moral, ethical and religious grounds, yet every year in the Tar Heel State hundreds of thousands of taxpayer dollars are made available to pay for abortions through the Teachers' and State Employees' Comprehensive Major Medical Plan,14 Medicaid,15 and the State Abortion Fund.16 While the 1973 Roe v. Wade decision gave women the ability to choose to abort their unborn children, this decision did not mandate that state taxpayer dollars be used to fund abortions. In fact, the North Carolina Supreme Court ruled in 1997 that a constitutional right to state funded abortions does not exist.17
The history of the State Abortion Fund testifies to the fact that almost all abortions are elective and a matter of convenience. In 1995, eligibility requirements were placed on the Fund authorizing it to pay for abortions only in the case of rape, incest or when the life of the mother is at risk.18 The year prior to the enactment of these restrictions, the Fund paid for 4,587 abortions.19 In all the years combined since these eligibility requirements went into effect, only one abortion has qualified for payment through the State Abortion Fund,20 yet the General Assembly continues to appropriate $50,000 annually for this purpose.
Minors: In order to perform an abortion on an unemancipated minor (an unmarried person under 18 years of age), a physician must first obtain the written consent of the minor and the minor's parent, guardian or other legally qualified individual.21 In order to comply with Roe, our law also includes a provision allowing a minor, for a variety of reasons, to seek a judicial waiver of the parental consent requirement.22
Within months of the passage of the parental consent law in 1995, a sixteen-year-old girl in Raleigh forged her mother's signature on a note of consent and obtained an abortion at a Wake County abortion clinic. Her parents sued the clinic for failing to obtain their consent, and in August 1998, the N.C. Court of Appeals upheld a lower court decision to dismiss the case.23 The resulting policy effectively allows a minor to circumvent the parental consent law by forging the signature of her parent or guardian. Numerous bills have sought to close this loophole by requiring the parental consent to be notarized or having the parent or guardian accompany the minor to the clinic or hospital, but the General Assembly has rejected all of these efforts.24
Conscience Protection: Physicians and nurses who object to abortion on moral, ethical, or religious grounds may not be fired or disciplined for refusing to participate in an abortion procedure,25 however, similar protection is not provided for pharmacists, despite the fact that these health care providers are facing greater pressure to stock and fill prescriptions for abortifacient drugs, such as RU-486 and Preven, the so-called "morning after pill." Although measures to protect a pharmacist's right to conscience have been filed in the legislature, none have been approved.26
Injury to a Pregnant Woman
In the wake of the highly publicized murder of Laci Peterson and her unborn son Connor, the U.S. Congress passed a law in early 2004 that instituted a separate criminal charge for harming an unborn child during the commission of a violent federal crime.27 The Unborn Victims of Violence Act defines an unborn child as "a member of the species homo sapiens, at any stage of development, who is carried in the womb," but the scope of this law is limited to federal crimes.28 North Carolina has yet to reciprocate with a similar state law, despite numerous attempts,29 as well as highly publicized murders in North Carolina resulting in the death of the mother and her unborn child.30
The state does have a law that allows for an enhanced penalty if an individual injures a pregnant woman during the commission of a misdemeanor or felony and the injury results in a miscarriage or stillbirth, but the law fails to recognize the unborn child as a separate "person" and the death of the unborn child as a separate offense.31
Embryonic Stem Cells and Cloning
Many scientific and medical researchers seem intent on pushing the envelope in the exploration of life. Embryonic stem cell research and human cloning have moved to the forefront of debate across the nation and the globe. Through the manipulation of eggs and other tissue cells, scientists have manufactured embryos-what many consider to be life at its earliest stage. The creation and subsequent destruction of these embryos for the purpose of obtaining stem cells for scientific research has been met with significant opposition from those who find these efforts immoral and unethical. This process of harvesting stem cells, "cells that have the capacity to self-renew and to transform into other mature cells and tissue types," is commonly referred to as "therapeutic cloning."32 If the embryo at this stage is allowed to grow and is implanted into the mother's womb, it has the potential to further develop to birth in a process known as "reproductive cloning."33 Although no one has successfully cloned a human being, and a majority of those in the medical and research fields would admit that reproductive cloning is unethical, this was the mechanism used to clone "Dolly" the sheep in 1996.
North Carolina law is silent on the issue of human embryonic stem cell research and human cloning. A measure did pass the North Carolina House during the 2007 Legislative Session that would authorize the use of state taxpayer dollars for embryonic stem cell research on certain human embryos "left over" from in vitro fertilization, but the North Carolina Senate did not act on the bill.34 This proposal, in many ways, mirrored legislation passed by the U.S. Congress in 2005,35 and 2007,36 that was subsequently vetoed by President Bush. As for cloning, a bill first was introduced in 1997 to ban human cloning in North Carolina.37 Numerous others have been filed since, but none of these bills have been considered by the General Assembly.38
No specific provision exists in North Carolina statute prohibiting assisted suicide, and case law on the issue is ambiguous at best. When the General Assembly adopted the English common law in the 1700's, suicide was recognized as a felony.39 In fact, English law considered the act such an affront to God and man that the punishment was to bury the body in the highway and then drive a stake through it and to forfeit all the individual's belongings and property to the king.40 A little over a century later, the burial practice was forbidden in England, and because the United States does not allow forfeitures to the government, the historic punishments for suicide were unavailable.41 In 1961, the State Supreme Court "conceded that suicide may not be punished in North Carolina," but, at the same time, it concluded, "...one who aids and abets another in, or is an accessory before the fact to selfmurder is amendable to the law."42 Then, in 1973, the State Legislature abolished the common law crime of suicide, and with it, any likely remedy against an individual who assists another in ending their life.43
In 1997, the U.S. Supreme Court declared that there is no constitutional right to assisted suicide, and that it is in the states' best interest to discourage assisted suicide.44 At least 38 states have laws that criminalize assisted suicide,45 and although the matter has been discussed in the North Carolina General Assembly, a law clearly banning assisted suicide has not passed.46
End of Life Care
State lawmakers revised North Carolina's laws dealing with end of life care in 2007. The bill rewrote North Carolina's health care power of attorney and living will statutes and also introduced the Medical Order for Scope of Treatment (MOST) form, through which an individual may document their wishes regarding the level of care they desire to receive in an end of life situation.47 Throughout the process of the passage of this legislation, concerns were raised that the bill would create a state policy that allows individuals and physicians to end life before natural death occurs. While the legislation seems to be written in a way that presumes treatment will be provided-unless a patient elects to withhold or withdraw care through the use of one of these documents-state law does not define a minimum standard of care a patient is expected to receive. This omission creates ambiguity regarding the treatment an individual can expect to receive regardless of whether or not they complete any of these legal documents.
Two-and-a-quarter centuries ago, the policies of the Tar Heel State reflected and honored the inalienable right to life contemplated in the Declaration of Independence and our State Constitution. Since that time, a combination of laws adopted by the North Carolina General Assembly and opinions filed by state and federal courts have created a patchwork of "life-related" policies that are fraught with inconsistency and contradiction. Continued efforts over the last decade to rectify these deficiencies have been rejected by the General Assembly, and no substantive "pro-life" legislation has been allowed to come before the State House or Senate for consideration. Court decisions, especially those based on the Roe and Doe opinions of the 70's, have further exacerbated the problem to the point that our "life" laws are more accurately represented by the amorphous notion displayed on a "Life, you can't live without it!" bumper sticker than they are by our state's and our nation's founding documents. If we hold true to the belief that life is a fundamental right given by the Creator, we must not only value the life of each and every person from beginning to end, but our culture and our laws must honor, respect and protect life from the womb to the tomb.
John L. Rustin is Vice President and Director of Government Relations
for the North Carolina Family Policy Council.
1 The Declaration of Independence.
2 Stam v. State, 302 N.C. 357; 275 S.E.2d 439 (1981).
3 Stam v. State, 47 N.C. App. 209; 267 S.E.2d 335 (1980).
5 Roe v. Wade, 410 U.S. 113 (1973).
6 Doe v. Bolton, 410 U.S. 179 (1973).
7 State v. Slagle, 82 N.C. 653, 655 (1880).
8 N.C.G.S. § 14-44.
9 N.C.G.S. § 14-45.
10 N.C.G.S. § 14-45.1.
11 North Carolina General Assembly, House Bill 1552-WRTK-Woman's Right to Know (2007-08 Session); House Bill 1488-Abortion/Woman's Right to Know (2005-06 Session); Senate Bill 549-Abortion/Woman's Right to Know (2005-06 Session); House Bill 998-Abortion/Woman's Right to Know (2003-04 Session); Senate Bill 571-Abortion/Woman's Right to Know (2003-04 Session); House Bill 1280-Abortion/Woman's Right to Know (2001-02 Session); House Bill 1064-Abortion/Right to Know (1999-00 Session); House Bill 536-Abortion/Right to Know (1997-98 Session); House Bill 624-Abortion/Right to Know (1995-96 Session); Senate Bill 734-Abortion/Right to Know (1995-96 Session); House Bill 1026-Informed Consent Before Abortion (1993-94 Session); House Bill 169-Duty to Advise on Abortion (1989-90 Session); House Bill 1231-Abortion Control Act (1989-90 Session).
12 North Carolina General Assembly, House Bill 1782-Ultrasound Before an Abortion (2007-08 Session).
13 Kim Conroy, "Ultrasound and a Woman's Right to Know," http://www.heartlink.org/directors/A000000535.cfm.
14 2003 Session North Carolina General Assembly. Legislative Actuarial Note on House Bill 854, May 2, 2003.
15 "Number of Abortions and Expenditures for SFY 2004." Obtained from Legislative Fiscal Staff, North Carolina General Assembly.
16 North Carolina General Assembly, 2007 N.C. Session Laws, Chapter 323. (House Bill 1473-2007 Appropriations Act.)
17 Rosie J. v. N.C. Department of Human Resources, 347 N.C. 247, 491 S.E.2d 535 (1997).
18 1995 N.C. Session Laws, Chapter 324, Section 23.27 (Budget for FY 1995-1997), as clarified by 1995 N.C. Session Laws, Chapter 507, Section 23.8A.
19 "Division of Social Services Response to Fiscal Research Request for Information on the History of the State Abortion Fund," North Carolina Division of Social Services.
21 N.C.G.S. § 90-21.7.
22 N.C.G.S. § 90-21.8.
23 Jackson v. A Woman's Choice, Inc., 130 N.C. App. 590; 503 S.E.2d 422 (1998).
24 North Carolina General Assembly, House Bill 420-Abortion-Parental Consent Notarized (2007-08 Session); House Bill 1200-Abortion-Parental Consent Notarized (2005-06 Session); Senate Bill 1135-Notarized Consent for Minor's Abortion (2005-06 Session); House Bill 830-Abortion-Parental Consent Notarized (2003-04 Session); Senate Bill 570-Notarized Consent for Minor's Abortion (2003-04 Session); House Bill 526-Abortion-Parental Consent Notarized (2001-02 Session); Senate Bill 913-Abortion-Parental Consent Notarized (2001-02 Session); Senate Bill 481-Notarized Consent for Minor's Abortion (2001-02 Session).
25 N.C.G.S. 14-45.1(e).
26 North Carolina General Assembly, House Bill 155-Conscience Protection/Health Care Providers (2007-08 Session); House Bill 1407-Conscience Protection (2005-06 Session); House Bill 962-Refuse to Abort/Extend Conscience Protection (2003-04 Session); Senate Bill 942-Abortion/Extend Conscience Protection (2003-04 Session); House Bill 1011-Refuse to Abort/Extend Conscience Protection (2001-02 Session).
27 Public Law 108-212.
29 North Carolina General Assembly, House Bill 263-Unborn Victims of Violence (2007-08 Session); Senate Bill 295-Fetal Murder (2007-08 Session); House Bill 1324-Unborn Victims of Violence (2005-06 Session); Senate Bill 200-Fetal Murder (2005-06 Session); Senate Bill 1425-Fetal Murder (2003-04 Session).
30 Thomasi McDonald, "Law allows no fetal murder charge: If the killer of Jennifer Nielsen is found, state law allows charges for only her death, although she was 8 months pregnant," Raleigh News & Observer, June 24, 2007. See also, Mandy Locke, "Pregnancy, violent death linked: Woman's murder points to disturbing, if murky, statistics," Raleigh News & Observer, November 29, 2006.
31 N.C.G.S. 14-18.2
32 David A. Prentice, Ph.D., "Real Promise In Adult Stem Cells: Everything You Need to Know About Stem Cell Research," Family North Carolina, March/April 2007.
34 North Carolina General Assembly, House Bill 1837-Stem Cell Research Health and Wellness Act, (2007-08 Session).
35 United States House of Representatives, House Resolution 810-Stem Cell Research Enhancement Act of 2005, (2005).
36 United States Senate, Senate 5-Stem Cell Research Enhancement Act of 2007, (2007).
37 North Carolina General Assembly, Senate Bill 782-Cloning of a Human Being Prohibited, (1997-98 Session).
38 North Carolina General Assembly, House Bill 572-Prohibit Human Cloning (2007-08 Session); Senate Bill 896-Prohibit Human Cloning (2007-08 Session); Senate Bill 1040-Prohibit Human Cloning (2004-05 Session).
39 See State v. Willis, 255 N.C. 473, 121 S.E.2d 854.
43 NCGS 14-17.1.
44 Washington v. Glucksberg, 521 U.S. 702, 117 S. Ct. 2258 (1997).
45 Linda Attarian, Research Division, North Carolina General Assembly. "Senate Bill 145: Physician-Assisted Suicide." Bill Analysis. April 17, 2003.
46 North Carolina General Assembly, Senate Bill 145-Physician-Assisted Suicide (2003-04 Session).
47 North Carolina General Assembly, 2007 N.C. Session Laws, Chapter 502. (House Bill 634-Advance Directives/Health Care Power of Attorney).
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