Putting it to the test: Legal challenges plaguing 2011 legislation

As the N.C. General Assembly members gear up for their third special session following the January-June assembly in Raleigh, legal challenges are already in process regarding their work so far. U.S. District Judge Catherine Eagles has temporarily blocked one part of the state’s new abortion law (HB 854), the remainder of which took effect on Oct. 26. Eagles left in place the 24-hour waiting period required by the new legislation, but blocked a section including the required use of ultrasound and required provision of a verbal description of the ultrasound images, as well as a required offer to hear a heartbeat. Similar ultrasound requirements are also currently legally entangled in the states of Texas and Oklahoma. Eagles took the position that the blocked portion of the law was likely to be proved unconstitutional.

The abortion issue brought a second legal challege that is currently pending, this one against the newly approved “Choose Life” specialty license plate fees. The American Civil Liberties Union of North Carolina has claimed in their suit that the new law has created a “forum for private speech to only one viewpoint in the public debate over abortion, in violation of Plaintiffs’ rights under the First and Fourteenth Amendments to the United States Constitution.” The rationale includes the argument that the Legislature has repeatedly rejected the provision of a specialty license plate expressing support for a woman’s right to reproductive freedom.

Additionally, a new report from the abortion-rights advocacy group NARAL Pro-Choice North Carolina has generated controversy over the financial benefits of the new “Choose Life” specialty license plates, funneled to crisis pregnancy centers around the state. The group claims that the profits from the license plates are “state-regulated,” and that state regulation of the centers should therefore be required. The centers are currently unregulated, and among the NARAL claims based on their recently released study, “The Truth Revealed: North Carolina’s Crisis Pregnancy Centers,” is this statement: “More than two-thirds of all North Carolina CPCs (44 CPCs) provided medically inaccurate information. Of these, 32 will receive funding through the “Choose Life” license plate program.”

In other legal challenges affecting North Carolina, the N.C. State Board of Elections has suspended a portion of the pilot program for public funding of municipal elections in Chapel Hill. As discussed by the Carolina Journal Online (a project of the nonprofit John Locke Foundation), a recent Supreme Court ruling dealing with tax-payer funded elections in Arizona has led to a pending halt to so-called “rescue funds” for candidates who accept public funding through the Voter-Owned Elections program. Such funds, which are disbursed only if opponents outside the public-funding program exceed a set expenditure limit, have been ruled unconstitutional because such a system basically punishes non-participating candidates. As written by Chief Justice John Roberts, the majority ruling stated that the matching funds provision: “substantially burdens the speech of privately financed candidates and independent expenditure groups without serving a compelling state interest.” It remains to be seen if the SBOE’s determination will also affect the Council of State’s participation in Voter-Owned Elections, which applies to races for commissioner of insurance, state auditor and superintendent of public instruction — held up by the nonpartisan Democracy North Carolina as a national model for clean elections. It also remains to be seen if the state law’s method of funding, which differs in financial totals from that of Arizona, will become another challenge point in the legal system.

The Legislature reconvenes on November 7.

by Nelda Holder, contributing editor