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North Carolina Republican Senate leader Phil Berger was asked last week about the Alabama Supreme Court decision that an embryo created through in vitro fertilization is a person. The ruling prompted some IVF clinics to close.
Berger did not address IVF specifically, but he did give a clear answer on abortion.
He said the state’s ban on most abortions after 12 weeks is “spot on” for North Carolina. It’s less restrictive than most other Republican-led states.
Berger added: “I don’t see us making any substantial changes to that. Clearly in the short session and I personally would not be in favor of any wholesale changes long-term.”
While that sounds like a definitive statement, North Carolina Republicans have said one thing about protecting abortion rights in the past (Mecklenburg Republican House members John Bradford and Tricia Cotham, for instance) and then done another thing altogether, in lowering the cutoff from 20 to 12 weeks.
So, with the November election looming, is Berger’s statement an effort to brush aside a difficult issue for Republicans — or a genuine view that 12 weeks is a sound compromise in a closely divided state?
Mecklenburg Democratic State Sen. Natasha Marcus said she’s skeptical.
“I have every reason to believe there will be more restrictions,” said Marcus, who’s running for insurance commissioner this year. “I see him as a very skilled politician. This is him in an election year trying to not rile up women.”
Berger is arguably the most powerful Republican in the state — and would likely continue to be, even with a Republican governor. His counterpart in the state House, Republican Tim Moore, is running for Congress.
But Marcus said that if Republican Mark Robinson, who is pro-life and has likened abortion to murder, wins the governor’s race, “Robinson will shame Berger into putting in more restrictions.”
Berger’s comments made me curious as to how North Carolina’s current abortion restrictions compare with 26 other red states in the post-Dobbs landscape.
Though it’s a nearly 50-50 state, I’ll label North Carolina red for this analysis, considering a Republican has won every presidential election except one in the last 44 years.
North Carolina is in a very small group of red states — many of them very conservative — that have restricted abortion access, but haven't gone as far as six weeks: Montana, Nebraska, Alaska, Arizona and Kansas.
All other red states — like Texas, Louisiana, South Carolina and Tennessee — have either passed total bans, or bans up to six weeks. In some of those states — Wyoming, Utah and Florida — the courts have blocked stringent bans, for now, at least.
Some Republican-led states illustrate why Berger might tread carefully. In Ohio, lawmakers with Republican supermajorities passed a six-week ban. But voters rebuked them, approving the right to an abortion up to fetal viability — 20 to 24 weeks — in a landmark referendum.
Here is a look at the GOP states in which Republican lawmakers didn’t go all the way to six weeks:
Montana
It’s a deep-red state that former president Trump won twice by large margins. It has a Republican governor and a Republican legislature.
Lawmakers there passed a ban on what’s known as “dilation evacuation” abortions, which generally take place in the second trimester, or usually after 12 weeks. That’s been blocked by a court.
At the moment, abortion is legal until viability.
Nebraska
This is another conservative state where Republicans control state government.
In 2020, lawmakers used the concept of “fetal pain” to ban most abortions after 20 weeks.
Post-Dobbs, lawmakers have tried to pass strict abortion bans, but have failed.
Lawmakers finally settled on a ban at 12 weeks.
Alaska
Another red state that has a Republican governor, control of Alaska’s two legislative chambers are split.
The governor, Mike Dunleavy, is pro-life. But the anti-abortion movement has never really taken off.
Alaska legalized abortion before Roe v. Wade in 1973. And it appears there’s still strong sentiment in keeping it legal. Voters overwhelmingly rejected an effort in 2022 to hold a constitutional convention — a first step toward curtailing abortion.
Arizona
Arizona is like North Carolina, a purple-ish state where the GOP controls the legislature and the governor is a Democrat.
The state enacted a 15-week ban on most abortions in 2022, when there was a Republican governor. Since then, Democratic Gov. Katie Hobbs has vetoed some anti-abortion legislation and signed executive orders to protect the right.
Kansas
Kansas arguably doesn’t belong on this list because lawmakers didn’t get a chance to pass new restrictions post-Dobbs, due to an earlier anti-abortion law being blocked by the Kansas State Supreme Court in 2019.
Unable to pass new restrictions, anti-abortion rights advocates pushed for an amendment to the state constitution that would remove protections for abortion.
That failed overwhelmingly.
How North Carolina got here
With a Democratic governor, Republicans needed a supermajority to override his veto and enact abortion restrictions last year. Then they needed a bill that the entire Republican caucus could agree on.
They got their supermajority when Cotham switched from the Democratic Party to the Republican Party. Then, after numerous closed-door meetings, they reached a consensus on 12 weeks, with exceptions for rape or incest through 20 weeks. If there is a life-limiting fetal anomaly, an abortion is allowed through 24 weeks (Cotham has spoken about her own abortion for medical reasons).
Should Josh Stein or another Democrat win the governor’s office in November, it would be harder for the GOP to push even a supermajority to go from 12 to six weeks, since they would have to stick together and overcome his veto.
But a Republican governor could embolden the most conservative legislators, testing Berger and the new House speaker, who will likely be Destin Hall. And if Republicans didn’t have to worry about a veto, they could likely afford to lose a few more moderate members who’d like to keep a ban at 12 weeks.
Robinson, the leading candidate for governor, was recently caught on a hot mic saying "We’ve got [abortion] down to 12 weeks. The next goal is to get it down to 6, and then just keep moving from there."
