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Jane Ahlin, Published March 16 2013

Ahlin: Pro-life attorney sees ND legislation ‘dead on arrival’

North Dakotans in general – and the governor in particular – should listen to the words of a prominent pro-life attorney who characterizes the legal fate of the abortion-related bills dealing with personhood, fetal heartbeat, category (genetic abnormalities and sex selection), and pre-viability/fetal pain as “dead on arrival.”

Paul B. Linton, an attorney who specializes in pro-life litigation and legislative consulting on the national stage, an attorney who has served as general counsel for Americans United for Life, describes the thinking of the North Dakota legislators who are pushing those bills through the legislative process as “extremely naïve constitutionally.”

Emphatically, Linton says that the bills “never will be upheld.” Although money does not figure into his concern about the legislation, he also affirmed that when the state loses, North Dakota will be required to pay not only the state costs but also the costs of the plaintiff who sues the state.

To be clear, Linton is in complete agreement with the goal of overturning Roe v. Wade. He is quick to volunteer that his personal belief is for abortion to be legal only “to save the life of the mother.” However, he also is a legal scholar in the arena of anti-abortion legislation, and he looks at it objectively. When passion to ban abortion is set aside, the North Dakota bills do not pass legal muster.

For instance, in their insistence that the U.S. Supreme Court will overturn Roe v. Wade on a personhood case, personhood backers take heart from the Nebraska case Gonzales v. Carhart, in which Justice Anthony Kennedy joined the four conservative justices to uphold Congress’ 2005 ban on what was popularly called “partial-birth abortion.” Linton says they instead should look at the wording of the decision. In that wording, the court held that the ban did not impose an undue burden on the due process of women to obtain an abortion “under precedents we here assume to be controlling,” such as the court’s prior decisions in Roe v. Wade and Planned Parenthood v. Casey.

In other words, Linton sees the Supreme Court’s decision in the case as an “abortion procedure prohibition” rather than a case related to an “abortion ban.” In fact, the Supreme Court opinion cites Roe v. Wade as a “controlling” precedent.

Put another way, no matter how Justices John Roberts and Samuel Alito would rule, Linton is certain there is “no fifth vote” to overturn because Kennedy wrote that opinion.

One of the problems Linton observes in state legislators backing personhood measures is in their thinking that “they can force the Supreme Court to take cases.” Most cases taken by the Supreme Court are “entirely discretionary.” More importantly, he says, a “state has no right to decide for itself what the federal constitution means.” (He mentions the 14th Amendment, which defines a citizen as a person “born or naturalized” in the United States.)

As a practical matter, Linton also sees problems with personhood as a ballot measure. He points to Colorado, where ballot measures were defeated twice (2008 and 2010), and to Mississippi – surely a state more conservative than North Dakota – which turned back personhood with more than a 55 percent majority in 2011. He also mentions South Dakota, which defeated an outright abortion ban in 2006 and another that included qualified exceptions for “rape and incest” and “health” (of the pregnant woman) in 2008. Here, too, the majority was more than 55 percent both times.

There also are other legal problems. The continuing resolution (SCR 4009), which if passed would go to the ballot next fall, appears to Linton to be “an exhortation to the Legislature to enact pro-life legislation.” However, “such directives have not been regarded as judicially enforceable in other states.” In fact, “the language may not have any operative effect at all and does not say how the right to life ‘must be protected.’ ”

Linton considers that North Dakota’s bad legislation, along with similar legislation in other states, “all springs (from) great frustration to overturn Roe.” He sympathizes and is not immune to the frustration, himself. However, bad laws amount to an “impulsive response rather than reasoned response.”

If any of the laws pass, Gov. Jack Dalrymple needs his veto pen.

Ahlin writes a Sunday column for The Forum.