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TJ Jerke, Forum News Service, Published March 26 2013

North Dakota abortion laws will test Roe v. Wade

BISMARCK – North Dakota Gov. Jack Dalrymple said he signed three anti-abortion bills into law Tuesday to help “a legitimate attempt by a state legislature to discover the boundaries of Roe v. Wade.”

“These bills represent an additional restriction beyond what the Supreme Court has already ruled, which was they feel abortions beyond 24 weeks gestation can be outlawed,” he said in an interview Tuesday. “The question becomes, would they consider a further restriction or two? In the end, there’s only one source that can answer that question, and that’s our federal courts.”

The laws, set to take effect Aug. 1, challenge the landmark 1973 U.S. Supreme Court decision that ruled states cannot ban abortion prior to viability, or about 24 weeks.

His signatures already have kick-started a legal battle between the state and its sole abortion provider in Fargo.

Tammi Kromenaker, director of the Red River Women’s Clinic, said Tuesday afternoon during a news conference in Fargo that Dalrymple’s decision to sign the bills “is a whole new kind of extreme.”

“We will not allow this assault on fundamental reproductive rights to go unchallenged,” she said, adding that the bills “clearly have a theme of limiting women’s access to safe reproductive health care.”

Dalrymple, in a morning news release, said he signed House Bill 1456, which will ban abortions performed solely for gender selection and genetic abnormalities, and House Bill 1305, which bans abortions if a fetal heartbeat is detected. The third, Senate Bill 2305, will require physicians who perform abortions to have admitting and staff privileges at a nearby hospital.

The three bills cleared the Legislature over the past two weeks, while another anti-abortion bill has been passed by both the House and Senate but still requires some legislative work.

After the news, Rep. Bette Grande said she did not doubt Dalrymple would sign them.

“He’s been very clear about his statement of life; he’s a pro-life governor and this is a pro-life state,” said the Fargo Republican who sponsored two of the three bills.

Sen. Connie Triplett, D-Grand Forks, who grew so frustrated during the debate on one bill that she walked out before a vote was taken, said Tuesday was a very sad day for constitutional law.

“I expected him to seriously consider whether these bills would pass muster constitutionally and be a check to the emotional discussion in the Legislature,” she said. “It’s irresponsible of the Legislature and governor to pass bills as clearly unconstitutional and expose taxpayers to litigation.”

She said he should have vetoed the bills and awaited the results of a statewide vote in 2014 on amending the state constitution to define life at conception. That vote is mandated by Senate Concurrent Resolution 4009, which does not need the governor’s signature.

Dalrymple said he’s well aware there are many people on both sides of the debate after his office fielded many calls this past week, and abortion rights supporters rallied in cities around the state.

“In the end, I’m doing my best to make a decision that is going to respect the wishes of the Legislature, and still allow the questions to be answered, so we can settle the concerns and get to a place where everybody can move on,” Dalrymple said.

After the announcement, legal counsel for the women’s clinic, the Center for Reproductive Rights, said it has committed to challenging the “heartbeat bill,” HB1456, on behalf of the clinic before the law is scheduled to take effect.

“Governor Dalrymple and anti-choice politicians in North Dakota have relegated the women in their state to a second class of citizens today whose constitutional rights are lesser than those of other states where women’s rights are protected and guaranteed,” Nancy Northup, president and CEO of the center, said in a written statement. “We intend to take every legal step possible to ensure this blatant assault on women’s fundamental rights is struck down.”

In his release, Dalrymple asked the Legislature to appropriate funding for the attorney general to cover court costs that may arise with any of the bills, but primarily the heartbeat bill.

“It’s true, there will be some cost involved in this,” he said in an interview. “Certainly time and a lot of anxiety on both sides, but those things are really overshadowed by the seriousness of these questions.”

Sen. Ray Holmberg, R-Grand Forks, chairman of the Senate Appropriations Committee, said the Legislature could put funding for litigation into the state’s contingency fund, the attorney general’s budget or the budget for the Office of Management and Budget.

House Appropriations Chair Rep. Jeff Delzer, R-Underwood, said the Legislature will likely create some kind of litigation fund for all issues facing the state, not just the abortion bills.

In response to the Center for Reproductive Rights release, Grande said the bills properly address federal court precedents that say a state must address a woman’s right to privacy while balancing it against the state’s interests in regulating abortions by protecting the potential life and women’s health.

“We all knew that would happen, it will all be interesting to see what they litigate us on,” Grande said.

Attorneys have said prohibiting an abortion if a heartbeat is detected, which can take place at about six weeks, directly contradicts the Supreme Court ruling, which determined viability at about 24 weeks.

Dalrymple also signed Senate Bill 2305, which requires admitting and staff privileges at a nearby hospital for any physician who performs abortions in North Dakota.

“It is a legitimate and new question for the courts regarding a precise restriction on doctors who perform abortions,” he said.

The bill’s sponsor, Sen. Spencer Berry, R-Fargo, said it’s putting in place good public policy as it relates to protecting the health of women.

“The state now has a way of verifying individuals to see if they are qualified to perform the procedures,” he said.

A fourth abortion bill, Senate Bill 2368, seeks to ban abortions after 20 weeks. It passed the House on Friday but has been sent back to the Senate to concur or disagree with amendments the House adopted.

Senate Majority Leader Rich Wardner, R-Dickinson, has said he will ask his caucus to disagree with the changes and have it sent to a conference committee with three lawmakers from each chamber.

Dalrymple wouldn’t answer whether he would sign the bill since it may still be amended, but said it strongly resembles one of the bills he signed Tuesday.

He said no external factors such as religion or family have played into his decisions.

“I tried to be careful and think it through,” he said. “I tried to understand the questions and the legal aspects of it and history as best I could.”


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Forum reporter Wendy Reuer contributed to this report.