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Patrick Springer, Published March 29 2013

Legal fight will be difficult for new ND abortion limits

FARGO – North Dakota will be in for what’s widely regarded as an uphill fight in its three-pronged legal challenge to the landmark 1973 abortion rights decision, Roe v. Wade.

But supporters of the laws set to go into effect Aug. 1 hope those legal battles will lead to rulings that carve out new exceptions to Roe – what Gov. Jack Dalrymple referred to in his signing statement Tuesday as discovering the boundaries of the 40-year-old opinion by the U.S. Supreme Court.

The state finds itself at the forefront of the abortion rights battle now that the trio of novel bills restricting women’s rights to an abortion is signed into law.

The law that has drawn the most attention bans abortions once a fetal heart beat is first detected, which can happen as early as six weeks into a woman’s pregnancy – the most restrictive time limit in the country.

“This is absolutely the most extreme ban to pass,” said Bebe Anderson, a lawyer for the Center for Reproductive Rights, which represents the Red River Women’s Clinic in Fargo, North Dakota’s sole abortion provider.

That time period is far more restrictive than allowed under the timeline set in Roe v. Wade, which allows abortions until the fetus is viable outside the mother’s womb.

Generally, that is considered to be 23 to 24 weeks, although some states allow abortions up to the end of the second trimester, about 27 or 28 weeks into pregnancy.

Arkansas is testing the limit with a new law that bans abortions at 12 weeks of pregnancy, or 10 weeks after conception, when a fetal heartbeat typically can be detected by ultrasound.

Nine states, including Nebraska, Kansas and Oklahoma, have passed laws banning abortion 20 weeks after conception, on the theory that the fetus can feel pain at that stage of development, an idea that is not supported by mainstream medical organizations.

Combined with laws banning abortions of fetuses with genetic abnormality and requiring abortion doctors to have hospital privileges, North Dakota now has the nation’s most restrictive abortion laws, Anderson said.

“This is not chipping away” at women’s abortion rights, she said. “This is really taking a sledgehammer to women’s rights.”

When it challenges North Dakota’s “fetal heartbeat” law, the Center for Reproductive Rights will seek an injunction to bar the law from taking effect until the law’s legality is decided, Anderson said.

That request will go to a district court judge, who would likely hold a trial and issue a ruling that could then be appealed. Anderson said she’s not yet sure if the legal challenge would start in federal or state court.

A lawyer for the American Civil Liberties Union said the ACLU is also looking at North Dakota’s new restrictive laws and could take part in contesting them.

“We’re going to do everything we can to make sure that women’s right to decide their health care is protected,” said Elissa Berger of the ACLU. “We’re considering all the options.”

Christopher Dodson, a lawyer and executive director of the North Dakota Catholic Conference, said the “fetal heartbeat” abortion ban aims to create a new legal standard of fetal viability.

“Studies show that once a heartbeat exists, the chances of coming to full term are almost 100 percent,” he said.

Though courts have upheld abortion restrictions, especially after a 1992 U.S. Supreme Court case, it remains unclear whether the courts would approve the fetal heartbeat test, Dodson said.

The 5-4 ruling in the 1992 case, Planned Parenthood of Southeastern Pennsylvania v. Casey, upheld the basic right to get an abortion but also paved the way for further restrictions.

“The court has continuously shifted in its jurisprudence,” Dodson said. “How far they’ll go, I don’t know.”

Dodson added: “Admittedly it’s an uphill battle, but I wouldn’t call it a slam dunk on either side.”

Five other states are considering “heartbeat bills,” including Wyoming, Kansas, Mississippi, Kentucky and Ohio, according to the Guttmacher Institute.

Steven R. Morrison, who teaches constitutional law at the University of North Dakota School of Law, believes the bans involving fetal heartbeat detection and genetic abnormalities will be struck down.

He called the laws “patently unconstitutional,” and said most constitutional lawyers would agree.

Even some anti-abortion groups don’t appear to support the restrictive laws that now have passed in North Dakota, fearing they actually could hurt the cause, Morrison said.

“They might result in a backlash,” he said, adding that his views are his own and not those of the university or law school.

Since Roe made abortion legal, states are allowed to enforce restrictions as long as they do not impose an “undue burden” on a woman’s right to an abortion, Morrison said.

It’s that “undue burden” that the fetal heartbeat and genetic abnormality bans likely would violate, he said.

North Dakota is the first state to pass the ban on the grounds of genetic abnormality, although it joins several states in banning abortions on the basis of gender preference, Dodson said.

“It’s really a question that hasn’t been addressed by the courts for some time, and that is a legitimate reason” to test the law, as North Dakota is doing, he said.

Similarly, he said, the state has a compelling interest in protecting the unborn against gender discrimination.

The new law requiring abortion doctors to have staff privileges at a nearby hospital is similar to a Mississippi law that is being challenged in federal court by the Center for Reproductive Rights, Anderson said.

By passing what she calls “extreme” anti-abortion laws, North Dakota has ensured itself raft of costly court battles that will end in defeat.

“You can take just take it for granted that every dollar spent defending these unconstitutional laws is a dollar of taxpayer money wasted,” Anderson said.

A spokeswoman for North Dakota Attorney General Wayne Stenehjem said the office does not have an estimate of what it will cost to defend the new anti-abortion laws.

It can often take years to settle these sorts of court challenges.

For instance, a trial court decision on a challenge to a law North Dakota passed in 2011 that outlawed the off-label use of certain drugs in medication abortions is still pending. It is set for a four-day civil trial in Cass County District Court starting April 16.


Key U.S. Supreme Court abortion opinions

Roe v. Wade, 1973: The U.S. Supreme Court legalizes abortion, overturning state bans. Abortions can only be prohibited later in the pregnancy when a fetus can live outside of the womb. They still must be allowed to protect the health of the mother.

Planned Parenthood v. Danforth, 1976: The court overturns a Missouri law requiring a married woman to obtain her husband’s consent for an abortion.

Harris v. McRae, 1980: The court upholds an amendment to the U.S. Social Securities Act that restricts Medicaid funding for abortion to cases of life endangerment, rape or incest.

Webster v. Reproductive Health Services, 1989: The court upholds Missouri’s ban on the use of public employees and facilities to perform abortions and the state’s requirement that doctors test for viability starting at 24 weeks of gestation.

Hodgson v. Minnesota, 1990: The court rules against a Minnesota law that required minors to notify both parents before obtaining an abortion.

1992: The court reverses a previous decision that prevented state involvement in abortions before the end of the first trimester.

2000: The court rules against a Nebraska ban on partial-birth abortions. Laws in 30 other states are invalidated.

2007: The court upholds partial-birth abortion ban.

Source: The Pew Forum of Religion and Public Life


Readers can reach Forum reporter Patrick Springer at (701) 241-5522