ABSTRACT: This article provides a comprehensive legislative history of North Carolina's Woman's Right to Know Act of 2011. The Act requires informed consent and a mandatory twenty-four hour waiting period for abortion, thus protecting a woman's right to make an informed choice. Informed consent provisions and mandatory waiting periods give individuals making decisions the information and time necessary to make informed choices. The Act further provides that an ultrasound be performed and explained no less than four hours and no more than seventy-two hours before the abortion.
The article first provides a brief overview of sources of legislative history recognized in North Carolina. It then details the history of the Woman's Right to Know Act, from the first informed consent bill introduced in 1981, to the passage of the 2011 law, and to the federal court case that followed. Finally it provides specific objections that were raised against the bill and responses to each.
Legislators considering similar legislation need to be aware of the opposition they inevitably will encounter when passing such a bill. The author expects that this history and the ultimate success of North Carolina will encourage other states' legislators and lawyers and give them the tools to make their case effectively.
In 2011 North Carolina passed the Woman's Right to Know Act. The purpose is to ensure that every woman deciding whether or not to have an abortion will have all the information necessary to make a fully informed decision.
Informed consent and mandatory waiting periods are not unknown to the law. For example, a spouse has to wait a year after separation to seek a divorce. (1) After signing the paperwork to refinance a home a family has three days to cancel the transaction. To obtain a concealed carry permit a person must take a gun safety class and then wait for approval that could take up to 45 days. (2) Consent of the birth parents to an adoption can be revoked up to seven days after the original consent is given. (3) And for Medicaid sterilizations a thirty day waiting period is mandatory after informed consent is obtained. (4)
Typically there is no challenge to the constitutionality of any of these laws or argument that they violate constitutional rights. These laws ensure that citizens have the time and information to make the best decision possible. These laws provide the opportunity for a person to change his or her mind. A woman considering abortion should also have the information and time necessary to make the best decision. This protects her right to choose. And unlike many of the examples above, once an abortion is performed the consequences are irreversible.
While opponents would suggest otherwise the provisions in this act are generally supported. According to a nationwide Gallup Poll conducted in 2011, eighty-seven percent of those polled favored a law requiring doctors to inform patients about certain possible risks of abortion before the procedure, with eleven percent opposed. (5) In the same poll, fifty percent of those polled said that they would support a law requiring a woman to be shown an ultrasound twenty-four hours before the procedure occurred. Forty-six percent opposed.
The Woman's Right to Know Act includes both of these provisions. The proponents wanted to ensure that the information required would actually impact a woman's decisions. Mark Gius concluded that "the odds of a woman having an abortion in a state with an ultrasound law are only 25% of the odds of a young woman having an abortion who lives in a state without such a law." (6) His study demonstrates that laws requiring ultrasounds have a very significant effect on a woman's choice. (7) In a different study, informed consent laws, when they take effect, were shown to decrease the abortion ratio by 10.34 abortions for every thousand live births and decrease the abortion rate by 0.86 abortions per thousand women between the ages of 15 and 44. (8)
This article provides a complete legislative history of North Carolina's Woman's Right to Know Act. With time and technology the sources of legislative history have changed. Formerly debates in the House and Senate were not available at all. Today debates in the House and Senate are recorded, and debates in the House are archived on the internet. (9) It is from these recordings that we have prepared transcripts and have included extensive excerpts in this article. It is the expectation of the author that by outlining verbatim North Carolina's legislative experience that legislators of other states considering similar legislation will benefit.
The second section of the article briefly summarizes the use of legislative history in North Carolina. The next two sections outline in detail the progress of the Woman's Right to Know Act as it made its way through the legislature and past the Governor to become law. It includes the eventual implementation by the Department of Health and Human Services. The fifth section includes court cases that deal specifically with informed consent requirements for abortion and North Carolina's Woman's Right to Know Act. The sixth section contains six specific objections presented by opponents and then provides responses.
Legislative History in North Carolina
For legal historians, the purpose in reviewing the legislative history of a law is to answer the ultimate question of legislative intent. (10) The materials that may be used for that purpose vary with time. Does it include only the sequence of legislative action, that is, the various editions of the bill as amendments were added, engrossed, and voted upon? Or does it include statements, oral or written, made about the bill before the vote was taken which were heard by or available to those voting? Certainly it does not include self-serving statements made after enactment.
Some question whether using legislative history to determine legislative intent is proper. Its use has been admissible depending on what type of legislative history is suggested. Over the years some of the categories of legislative history used in the courts have included statements by the introducer or the member in charge of the bill, committee reports, changes made to editions of a bill, the minutes of a legislative committee, and the governor's remarks. A comprehensive summary of the admissibility of legislative history is Thomas P. Davis' "Legislative History in North Carolina." (11)
There are instances where courts have referenced statements by the introducers or the member in charge of the bill to determine legislative intent and to clarify otherwise vague provisions. In Corporation Commission v. Southern Railway Co., (12) the chairman's statement was instrumental in the defeat of an amendment. The Supreme Court of North Carolina stated:
The propriety of referring to statements made by a committee member in charge of a bill, of course, is well recognized. See Church of the Holy Trinity v. United States, 143 U.S. 457, 36 L. Ed. 226, 12 S. Ct. 511; United States v. St. Paul, etc., Railway, 247 U.S. 310, 69 L. Ed. 1130, 38 S. Ct. 525; Duplex Printing Co. v. Deering, ...; also the Wisconsin Passenger Fare ease. (13) The cases cited in Corporation Commission v. Southern Railway Co. are instructive in other areas of legislative history. In Duplex v. Deering, (14) a response by a committee chairman in charge of a bill to a question, including statements made by that member in the form of supplemental reports, was considered admissible on the intent of the United States House in passing the bill. (15) In United States v. St. Paul (16) statements made by the committee chairman were used, (17) but the Court also mentions the admissibility of other types of legislative history:
It is not our purpose to relax the rule that debates in Congress are not appropriate or even reliable guides to the meaning of the language of an enactment. United States v. Trans-Missouri Freight Assn., 166 US 290, 318. But the reports of a committee, including the bill as introduced, changes made in the frame of the bill in the course of its passage, (18) and statements made by the committee chairman in charge of it, stand upon a different footing, and may be resorted to under proper qualifications. (19) In Binns v. United States, (20) the remarks of the Committee Chairman were used to clarify an ambiguous statement. (21)
Committee reports have also been deemed as documents that are admissible to show legislative intent." (22) As stated in Sneed v. Board of Education: (23)
With no evidence before us that the meaning of 'free public schools' was even raised as an issue in the public discussion and debate surrounding the 1970 constitutional revision, we cannot read into the voice of the people an intent that in all likelihood had no occasion to be born. (24) While the cases cited in Corporation Commission v. Southern Railway Co. are expansive, their application to North Carolina has been limited due to the previous scarcity of reliable sources. Legislative committee reports in North Carolina usually consist of "Favorable," "Unfavorable," or "Without Prejudice."
Denying any significance to legislative history of the minutes of a legislative committee, or any materials attached to them, is a per curiam decision in Kaplan v. Prolife Action League of Greensboro (25) modifying and affirming the 1996 opinion of the Court of Appeals. (26) The Supreme Court said, in dicta: "In discussing the North Carolina RICO Act, the Court of Appeals relied on the minutes of a legislative committee of the General Assembly in determining legislative intent. We disavow those portions of the Court of Appeals opinion." While minutes are not transcriptions of the debate they do indicate who spoke. There is an audio recording kept by a Sergeant of Arms from which those who wish may transcribe the debates. We have done so. (27) Why would the record of words spoken, heard, or...