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Mike Nowatzki, Published January 25 2014

20-week abortion ban still a victory, say ND abortion opponents

BISMARCK – Abortion opponents claimed a victory last year when the North Dakota Legislature approved a bill banning abortion at 20 or more weeks into pregnancy, based on the disputed claim that a fetus can feel pain at that stage.

While it had no practical effect on the state’s lone abortion provider, and the U.S. Supreme Court recently refused to hear the case of a similar Arizona law struck down in a federal appeals court, the bill’s sponsor said it was not a fruitless effort.

“It was one of those things where even the abortionists realize the significance of pain within the womb and that … it’s not an acceptable practice,” said Rep. Bette Grande, R-Fargo.

But another Republican from Fargo said the 20-week law and three other abortion-limiting bills approved by the Legislature last year did little more than distract lawmakers and consume taxpayer dollars that could have been better spent on children’s health and education programs.

“My feeling was it would only end up costing us money, and to date that is all that’s happened,” said Rep. Kathy Hawken, who opposed the abortion-related laws.

Last week, as people on both sides of the abortion debate marked the 41st anniversary Wednesday of the Supreme Court’s landmark Roe vs. Wade decision, Grande said abortion-related laws approved by North Dakota lawmakers during their last two sessions were all worthwhile, even as some are mired in costly court challenges.

Figures from the attorney general’s office show the state has spent $250,644 since February 2012 to defend its abortion-related laws, most of it on expert witnesses and outside legal counsel.

Of the four abortion-limiting laws approved last spring, only the 20-week ban avoided a legal challenge. The New York-based Center for Reproductive Rights, representing the Red River Women’s Clinic in Fargo, has said the clinic doesn’t have legal standing to fight the 20-week law because it only performs abortions up to 16 weeks of pregnancy.

Flurry of laws

Nine states currently ban abortion based on the assertion that the fetus can feel pain at 18 or 20 weeks post-fertilization: Alabama, Arkansas, Indiana, Kansas, Louisiana, Nebraska, North Dakota, Oklahoma and Texas.

Three other states – Arizona, Georgia and Idaho – have similar laws, but Arizona’s law isn’t in effect and Idaho’s law is enjoined pending the outcome of litigation, according to the Guttmacher Institute, a reproductive health and rights organization.

In Arizona, the 9th U.S. Circuit Court of Appeals declared the state’s 20-week law unconstitutional last year. Roe vs. Wade held that a woman has a right to have an abortion until the unborn reaches viability outside the womb, considered to be at about 24 weeks.

Arizona appealed to the U.S. Supreme Court, but on Jan. 13 justices refused to hear the case, disappointing abortion opponents who hoped the high court would take up the recent flurry of state laws restricting abortion.

Tom Freier, executive director of the Fargo-based North Dakota Family Alliance, said the Supreme Court’s refusal to hear Arizona’s appeal is concerning, but abortion opponents are encouraged by new restrictions being passed by states, as well as opinion polls that he said show an “increase in support for life.” Twenty-two states enacted 70 abortion restrictions last year, the Guttmacher Institute reported.

“I think many in the pro-life community … would like to see abortion be no more, but by the same token we have fought for incremental changes,” Freier said.

The Fargo clinic performed 1,185 abortions last year, down from 1,330 in 2012 and the lowest number since at least 2001. While North Dakota’s 20-week law may not affect the clinic’s operations, Freier, like Grande, believes it still has educational value by contributing to the awareness of fetal pain.

“I think that has an effect on the attitude of those considering abortion,” Freier said.

Hawken, echoing recent comments by the clinic’s executive director, Tammi Kromenaker, said the new abortion bills and the intense news coverage they received last year may have given some women the impression that abortions are no longer available in North Dakota. But Hawken said she prefers to think abortion numbers dropped because of increased educational efforts and expanded contraception coverage under the federal Affordable Care Act.

Legislative priority

The National Right to Life Committee said last week it considers the 20-week ban its major legislative priority, touting how its model legislation has been enacted in 10 states. A version of the bill passed the Republican-controlled U.S. House in June and was introduced in the Senate in November.

The Center for Reproductive Rights issued its own a report last week documenting what it called the “catastrophic results” of legislation restricting abortion and highlighting the center’s efforts to challenge the laws in court.

“It’s beyond time for state legislators to recognize that the only way to protect women’s health is to ensure access to abortion and other critical reproductive health services, not by banning abortion or shutting down safe, reputable providers,” said Amanda Allen, the center’s state legislative counsel.

The center is representing MKB Management, doing business as the Red River Women’s Clinic, in legal challenges pending against three North Dakota abortion laws.

In June, the center filed a constitutional challenge in federal court to House Bill 1305, which bans abortions based on gender or genetic defects. But the challenge was dropped in September because the clinic doesn’t perform abortions based on those factors.

In the same lawsuit, the center also challenged a 2013 law that would ban abortions if a fetal heartbeat can be detected, generally at six weeks into pregnancy – the most restrictive such law in the nation and one that opponents argue would effectively shut down the Fargo clinic.

Gov. Jack Dalrymple, in signing House Bill 1456 into law last March, called it “a legitimate attempt by a state legislature to discover the boundaries of Roe v. Wade.”

U.S. District Court Judge Daniel Hovland granted a preliminary injunction in July to stop the law from taking effect, calling it “clearly an invalid and unconstitutional law.” The case is pending.

The clinic also filed a challenge in Cass County against Senate Bill 2305, which would require physicians who perform abortions to have admitting privileges at a nearby hospital. District Court Judge Wickham Corwin agreed to add that complaint to the clinic’s challenge of a 2011 law that would restrict medication abortions.

Corwin temporarily blocked both laws from taking effect, and he ruled in July that the medication abortion law was unconstitutional, prompting the state to appeal to the North Dakota Supreme Court. A trial on the admitting privileges law is slated to begin Feb. 11, though the parties are likely to ask that it be postponed, according to a summary of the 2013 abortion laws prepared by the Legislative Council.

North Dakotans also will vote in November on a proposed constitutional amendment, Senate Concurrent Resolution 4009, that would require protection of life at any stage of development.

Sen. Ray Holmberg, R-Grand Forks, who requested the bills summary, said part of the opposition to the bills last session was that the issues had already been resolved in court.

“‘These dogs aren’t going to hunt.’ That was one of the arguments against it,” he said.

However, Holmberg contends the bills didn’t consume an inordinate amount of the Legislature’s time as some have suggested.

As for the cost of defending the bills, “There’s costs to whatever government does,” he said.

“These are things that citizens of North Dakota had an interest in, and more power to them,” he said. “They got their issues heard, a number of them passed and then there’s the rest of the process.”