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Paul Benjamin , Published April 19 2011

ND Defense of Human Life Act would be an exercise in futility

I am writing in reference to the North Dakota Senate’s action in tabling further consideration of House Bill 1450, the Defense of Human Life Act. In my judgment, based upon more than 20 years’ legal experience in the pro-life movement, including representing members of the North Dakota Legislature as “friends of the court” in the Supreme Court, HB 1450 did not deserve the support of the pro-life community and was properly tabled.

HB 1450 would have banned abortions throughout pregnancy except to save the life of the mother. Under controlling Supreme Court precedent, including Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood v. Casey, 505 U.S. 833 (1992), the states may not prohibit any abortions before viability.

Moreover, contrary to the views of some, there is no reason to believe that Justice Anthony Kennedy, who co-authored the joint opinion in Casey, would vote to uphold a ban on abortions before viability. He reiterated the viability rule in his dissent in the first partial-birth abortion case, Stenberg v. Carhart, 530 U.S. 914 (2000), and in his majority opinion for the court in the second partial-birth abortion case, Gonzales v. Carhart, 550 U.S. 124 (2007). In the former case he said, “Nebraska must obey the legal regime, which has declared the right of the woman to have an abortion before viability.” (Emphasis added.) In the latter case, he acknowledged that the federal Partial-Birth Abortion Ban Act would have been unconstitutional if it had prevented pregnant women from obtaining second-trimester abortions.

Although it is unlikely that the Supreme Court would preview an abortion ban like HB 1450, if it did, it would strike it down. It is not in the interest of the pro-life movement to have Roe reaffirmed yet again, nor is it in the interest of the pro-life movement to force Chief Justice Roberts and Justice Samuel Alito to declare themselves on whether Roe v. Wade should be overruled before a majority of the court is ready to overrule Roe.

North Dakota already has on the books a law that would prohibit abortions throughout pregnancy once the Supreme Court restores to the states their rightful authority to legislate in this area. Until it does (and the present court would not do so), enacting legislation like HB 1450 would be an exercise in futility.


Linton is a Northbrook, Ill., attorney.