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Brittany Lawonn, Published July 24 2009

Abortion provider fighting new law

The Red River Women’s Clinic has filed a lawsuit to stop a North Dakota law requiring the abortion clinic to give women an opportunity to view an ultrasound 24 hours before getting an abortion.

Supporters of the law, scheduled to take effect Aug. 1, say it’s meant to give women considering abortion more information and awareness about what they’re doing.

But reproductive rights advocates and the Fargo clinic take issue with the law, saying it’s confusing in how it’s written.

The law includes a provision about making a fetal heartbeat audible but is not clear whether the facility must offer the woman the opportunity to listen to the heartbeat, according to the suit, filed in Cass County District Court.

Because violating the law could lead to criminal charges, the clinic filed the suit to better understand it, Director Tammi Kromenacker said.

“We just don’t know what to do to comply with that particular sentence in the legislation,” Kromenacker said. “It’s unclear; it’s vague and confusing.”

Sen. Robert Erbele of Lehr, who sponsored the initial bill, said the law does not force a woman to look at an ultrasound or listen to a heartbeat, but increases their understanding. The bill passed in the House and Senate this spring by a vote of 77-9 and 44-1 respectively.

“It gives a person considering the abortion just a little bit more time to think about it and maybe by viewing the ultrasound it would make them aware of the reality of what they’re doing,” Erbele said. “There is a real life there and a real person that they’re dealing with.”

Suzanne Stolz, staff attorney at the New York-based Center for Reproductive Rights, said the law does nothing to enhance the safety of abortion care and it will just subject North Dakota’s only abortion provider to strict liability for failing to conform to a medical standard that doesn’t exist.

The law requires the audible heartbeat “be of a quality consistent with standard medical practice in the community,” which makes the law unclear, Stolz said.

The Fargo clinic is asking the court to issue a temporary injunction preventing the law from taking effect while the court reviews the legal challenge, according to a news release issued by the Center for Reproductive Rights.

Attorney General Wayne Stenehjem said the state is prepared to defend the law and is currently drafting a response to the lawsuit. A hearing in the case is slated for July 30.

Stenehjem said he will contact medical professionals and review the legislative history, adding that the clinic may have a long fight ahead.

“Anyone challenging the constitutionality of a legislative enactment has an uphill battle because the courts have said legislative enactments enjoy a strong presumption of constitutionality,” Stenehjem said. He added that it takes four out of five North Dakota Supreme Court justices to determine that a legislative enactment is unconstitutional.

Stolz said this is the first time the center has challenged such a provision because she believes it to be the only law in the country that mentions the use of audible heartbeats.

The law would limit a women’s ability to obtain an abortion in North Dakota because of the vague and confusing restriction, the release stated. The cost of the equipment needed to listen to a fetal heartbeat also would impose a high financial burden on the facility, according to the release.

“We want to be able to continue to offer services to the women while also following the law,” Kromenacker said.

She said she believes the legislation is interfering with the doctor-patient relationship by taking away discretion of health care providers. “It’s really not necessary for the legislation to mandate care.”

Readers can reach Forum reporter Brittany Lawonn at (701) 241-5541