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Wendy Reuer, Published March 15 2013

Anti-abortion attorney says heartbeat measure won’t survive legal challenge

FARGO – A bill passed by the North Dakota Legislature on Friday would effectively end abortions in the state, but an anti-abortion lawyer says it’s unlikely it will ever be enforced.

Legislators said they hope the law will be cause for the U.S. Supreme Court to reverse its landmark 1973 Roe v. Wade ruling, which legalized abortion.

Paul Linton, a Chicago-based attorney who has assisted other states with anti-abortion measures and served as general counsel to Americans United for Life, said Friday he doesn’t think that will happen.

“It’s not going to prevent a single abortion from happening, it’s not going to go into effect, and it’s not going to go to the Supreme Court,” Linton said.

House Bill 1456 prohibits an abortion if a detectable heartbeat is found. While the bill does not dictate a time frame or the methods for finding a heartbeat, it can be detected as early as six weeks from the woman’s last menstrual period, said Tammi Kromenaker, director of Red River Women’s Clinic, the only clinic that provides abortions in the state.

“Six weeks is a point where many women aren’t even aware that they are pregnant,” she said.

Another bill that passed, House Bill 1305, would ban abortions for gender selection or fetal anomalies.

Christopher Dodson, executive director of the North Dakota Catholic Conference, said the church applauds the Legislature, as did the national anti-abortion group Americans United for Life.

Planned Parenthood of Minnesota, North Dakota and South Dakota released a statement opposing the bills, and the Center for Reproductive Rights, which is representing the Red River Women’s Clinic in a lawsuit to overturn a 2011 law effectively banning the use of medication abortion, called on Republican Gov. Jack Dalrymple to veto the bills.

The bills require Dalrymple’s signature to become law, though the bills had enough support for a legislative override. Multiple messages left with a Dalrymple spokesperson were not returned Friday.

Dalrymple has not publicly said if he supports the bills.

“We certainly hope he will (sign it), and I think the people in North Dakota hope he will,” Dodson said.

Kromenaker said it does not matter how the governor feels about abortion, the bills should be vetoed because they are unconstitutional.

“I’m shocked that the North Dakota Legislature would pass a so blatantly unconstitutional law. The North Dakota Legislature has now become the most extreme legislature. They now surpassed Arkansas,” Kromenaker said.

Arkansas lawmakers recently passed a law banning abortions after 12 weeks. Gov. Democrat Mike Beebe vetoed the bill, saying it was unconstitutional, but the veto was overturned by legislators last week.

Linton said the bill is a “waste of time” that’s likely to be struck down by lower courts.

While he did not give an estimation of what litigation would cost, Linton said if defeated, state would pay not only its counsel, the attorney general, but the courts could also force the state to pay for attorney fees of those challenging the bill.

Linton said although rare, a state attorney general could choose to not defend the case because he recognizes the bill is baseless.

Liz Brocker, spokeswoman for Attorney General Wayne Stenehjem, said since the bill has not been signed by the governor, the office could not comment.

“We’ve not made any commitments,” she said. “We don’t respond to hypotheticals.”

As news broke of the laws passing, many North Dakota women took to social media sites to express their displeasure with the legislation.

Ann Larson, of Devils Lake, said the bill is anti-women and not necessary.

“It will not prevent abortion; it will only make it more dangerous for women to find ways to end unwanted pregnancies,” Larson said in an email to The Forum. “Women are not stupid and don’t need a politician to tell them what they can or cannot do with their own body. If men were the ones that got pregnant there would have been safe abortion in every clinic in America.”

Linton said if North Dakotans are truly yearning for a ban on abortion, legislators should put a constitutional amendment to the voters. The amendment would not be one that outright bans abortion but it would make it clear what laws can be upheld.

“It would read something like, nothing in this constitution secures the right to abortion or the public funding of abortion. The wording would be very simple,” Linton said of the amendment. “Any legislation that would not violate the federal constitution would not violate the state legislation.”

Rhode Island has a similar constitutional amendment and one will be on the ballot for Tennessee voters in 2014, he said.


Readers can reach Forum reporter Wendy Reuer at (701) 241-5530