Published July 31 2013
Judge to decide today on new ND abortion regulation that has been blocked in other statesFARGO – A new regulation on abortion providers set to take effect in North Dakota on Thursday has been halted by courts in every state where it has been challenged.
If a judge blocks the law in a hearing today, pausing enforcement until courts determine if it is constitutional, North Dakota will be the fifth state where judges are considering the legality of requiring doctors who perform abortions to have admitting privileges at an area hospital.
If a court order doesn’t prevent enforcement, North Dakota will become the third state to require all doctors to follow an admitting privileges law.
Two other states have passed similar legislation that isn’t in effect yet.
Including North Dakota, lawmakers have approved an admitting privileges law in nine states, several of them passing the legislation earlier this year. But the law has fully taken hold in just two states so far: Utah and Tennessee, where the new requirements weren’t contested in court.
In Utah, no clinics closed as a result of the new regulation. But in Tennessee, the law had an immediate impact: A Knoxville abortion clinic closed last August, citing the state’s newly enacted “Life Defense Act.”
The Red River Women’s Clinic in Fargo, the state’s only abortion clinic, hopes to avoid a similar fate. Its director has said the law would force the clinic, which is served by out-of-state physicians licensed to practice in North Dakota, to shut down.
Today in Cass County District Court, Judge Wickham Corwin will hear an attorney for the clinic argue for a preliminary injunction to stop the law from taking effect while a legal challenge proceeds.
As approved by the state Legislature in March, the law would require physicians who perform abortions to have admitting privileges at a hospital within 30 miles of the clinic. The Center for Reproductive Rights, which is representing the clinic, claims the requirement is unconstitutional.
Corwin has said the law raises the same legal and factual issues as a 2011 state law that sought to limit drug-induced abortions. The Center for Reproductive Rights also challenged the 2011 law, and Corwin ruled in June that the two lawsuits could be combined. In a July 15 ruling, Corwin permanently blocked the 2011 law, which he said violates the state and U.S. constitutions.
Opponents of such laws contend their requirements are unnecessary and an end-around attempt to shutter abortion clinics without having to challenge the Supreme Court’s 1973 landmark Roe v. Wade decision that legalized abortion in all 50 states.
“What we’re seeing are abortion restrictions being put in place that can eliminate access to abortion care in some or all parts of a state and there’s no need to try to overturn Roe,” said Elizabeth Nash, state issues manager for the Guttmacher Institute, a New York-based nonprofit dedicated to advancing sexual and reproductive health and rights, including abortion rights.
North Dakota Rep. Bette Grande, R-Fargo, one of the sponsors of Senate Bill 2305, said the notion that the law’s goal is to close abortion clinics “is completely false.”
“The bill was put together for the health and safety of the women,” she said.
Karrie Galloway, chief executive officer of Planned Parenthood Association of Utah, called the proliferation of admitting privileges laws “a plot to restrict access” to abortion.
In addition to being in effect in Tennessee and Utah, some clinics in Kansas are following an admitting privileges law, according to the Guttmacher Institute, which tracks abortion legislation.
Two clinics in Kansas are challenging the law there. The law is enjoined for those two clinics, but the other Kansas clinics must abide by it, Nash said.
Galloway said the Utah law forced one private-practice doctor to stop performing abortions, but he was planning to retire anyway. She said the law was less contentious in Utah because more than three-quarters of the state’s population lives in the Salt Lake City region where the three clinics are located, and most of the physicians performing abortions already had connections to local hospitals.
In states where admitting privileges laws are tied up in court:
E A federal judge in April issued a preliminary injunction blocking Mississippi’s law that requires any doctor who performs abortions in the state to be a board-certified obstetrician-gynecologist, or eligible for certification, with admitting privileges at an area hospital.
The Center for Reproductive Rights is challenging the law’s constitutionality. Like North Dakota, Mississippi has only one abortion clinic.
E On July 23, a federal judge in Alabama temporarily blocked the state from enforcing the admitting-privileges portion of its new abortion law until March 2014, while a legal challenge filed by Planned Parenthood and the American Civil Liberties Union moves forward.
E A temporary injunction also was issued in federal court in Wisconsin to block its similar admitting-privileges law from taking effect earlier this month. Planned Parenthood and the ACLU are behind that legal challenge, as well.
Arizona is still developing regulations for compliance with an admitting privileges law enacted in April 2012, so it’s not being enforced yet, Nash said.
A package of abortion restrictions signed by Texas Gov. Rick Perry on July 18 includes an admitting privileges requirement. It’s scheduled to take effect this fall.
Eight other states require abortion providers to have either admitting privileges or an alternative arrangement, such as an agreement with another doctor who has admitting privileges, according to the institute. Those states are Florida, Illinois, Indiana, Louisiana, Missouri, Oklahoma, Pennsylvania and South Dakota.
The Red River Women’s Clinic has three hospitals within a 30-mile radius, all in Fargo: Sanford Medical Center, Essentia Health and the Veterans Affairs Health Care System. In court documents, the clinic says it has tried to comply with the law’s requirements, but it believes none of its physicians will be able to obtain admitting privileges at any of the three.
Clinic director Tammi Kromenaker has said that Sanford requires a doctor to admit a certain number of patients each year to gain privileges. At the VA Medical Center, patients must be veterans. Essentia has a Catholic affiliation and does not grant privileges to abortion providers, Reuters has reported.
Any physician who fails to comply with the admitting privileges requirement could be prosecuted for a Class A misdemeanor punishable upon conviction by up to one year in prison and a $3,000 fine.
The admitting privileges law is one of four new regulations state lawmakers approved earlier this year.
The most stringent – a first-in-the-nation ban on an abortion if a fetal heartbeat can be detected – could bar abortions as early as six weeks into a pregnancy. A federal judge has blocked enforcement of that law, calling it a “clearly” unconstitutional restriction.
The other two laws set to go into effect Thursday will outlaw having an abortion because a fetus has a genetic defect and after 20 weeks into a pregnancy.
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