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Court battle over NC abortion rules continues as state AG's staff asks judge not to restore 20-week ban

The judge said the ban might be legal after the Supreme Court struck down Roe V. Wade.

GREENSBORO, N.C. — There's a new development in the battle over abortion in our state.

The procedure is legal in North Carolina but a lawsuit seeks to reinstate a 1973 ban after 20 weeks of pregnancy.

The State Attorney General's Office asked a federal judge Monday not to reinstate the ban. 

Last month, Judge William Osteen with the Middle District of North Carolina said his previous injunction on the 20-week ban "may now be contrary to law" after the Supreme Court struck down Roe V. Wade.

State Attorney General Josh Stein is recusing himself from the case, so other attorneys in his office are taking the lead on this suit.

Plaintiffs and defendants in the suit argue if the 20-week ban was lifted, it would "risk public confusion" about "the legality and availability of abortions in North Carolina."

Both sides want to leave the case alone but attorneys for Senate Leader Phil Berger and House Speaker Tim Moore want the court to take another look.

Berger and Moore said they have a legitimate interest in protecting unborn children from abortion.

Greensboro attorney Saiyani Mukombe said it's hard to say how much weight their position holds when both parties in the suit are not asking the judge to take action.

"Generally speaking, if both parties are fine with letting a case go, judges are fine with that," Mukombe said. "But this one is a lot different because it involves an entire overruling of Supreme Court precedent."

The 1973 law banned nearly all abortions after 20 weeks of pregnancy, with exceptions for saving the mother's life or medical emergencies.

The law was not enforced because it was considered unconstitutional under Roe V. Wade. A 2019 court ruling in this case upheld that.

Berger and Moore's attorneys argue that changed after Roe was struck down in June. They said the ban is now legal.

Mukombe said it's hard to know how the judge will rule.

"Judges likely are trying to make the best of the situation to make sure the Constitution and the laws are followed but there's not a lot of guidance," Mukombe said.

He said it could take up to 30 days to get an answer in this case. Abortion rights activists and doctors named in this case are asking the judge for at least 24 hours warning if the ban is put back in place.

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