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N.D. appeals judge's ruling blocking state abortion ban

BISMARCK - North Dakota is appealing a federal judge’s ruling that permanently blocked a state law that would have banned abortions after a fetal heartbeat is detected.

Attorney General Wayne Stenehjem filed a notice of appeal here Wednesday to U.S. District Court Judge Daniel Hovland’s April 16 ruling that said the law would essentially ban all abortions as early as six weeks of pregnancy and “cannot withstand a constitutional challenge.”

Stenehjem said he consulted with state officials and the other defendants in the case -- Cass County State’s Attorney Birch Burdick and the state Board of Medical Examiners -- before deciding to appeal. More than 60 North Dakota lawmakers signed a letter sent to Stenehjem last month urging him to appeal Hovland’s ruling blocking the law, which would have established the strictest abortion ban in the nation.

“While Judge Hovland’s ruling was not unexpected, and is understandable given controlling case law, the Legislature passed the law in hopes that a higher court would revisit the issue,” Stenehjem said in an emailed statement. “The office of Attorney General was created for the purpose of representing the state, including defending legislative enactments in court, and that is what my duty requires of me.”

Stenehjem said that because most of the background work of legal briefing already has been completed, “it seems prudent that an appellate court should have an opportunity to consider the issue rather than have one judge overturn the judgment of the Legislative Assembly.”

The 8th Circuit Court of Appeals in St. Louis will hear the appeal, with oral arguments expected sometime in the fall, he said.

The notice filed Wednesday shows the state intends to argue that the law is constitutionally sound and must be upheld because the factual underpinnings of two landmark abortion cases -- Roe v. Wade in 1973 and Planned Parenthood v. Casey in 1992 -- “have been shown to be false and invalid” and should be overturned.

The appeal also raises questions of due process, including whether “a genuine issue of material fact existed, as to when viability of an unborn child occurs” that should have kept Hovland from awarding summary judgment to the New York-based Center for Reproductive Rights. The center filed a legal challenge to the law in June on behalf of the Red River Women’s Clinic in Fargo, the state’s lone abortion provider.

David Brown, an attorney for the nonprofit Center for Reproductive Rights, said Wednesday that federal courts have repeatedly struck down pre-viability abortion bans.

“We continue to believe that the district court’s decision was the correct one and no federal court would uphold an extreme ban on abortion like this one,” he said.

The state’s appeal also raises questions related to whether the law discriminates against women on the basis of sex in violation of a woman’s right to equal protection under the 14th Amendment of the U.S. Constitution.

Brown said the cost of the state’s appeal “really depends on how much resources they choose to devote to it.” He noted the center’s clients produced 1,069 pages of documents as part of the discovery process in the lower court case.

The state has spent about $155,000 so far on litigation related to the fetal-heartbeat abortion ban, according to the attorney general’s office. Lawmakers set aside $400,000 for Stenehjem to defend the law.


Mike Nowatzki

Mike Nowatzki reports for Forum News Service. He can be reached at (701) 255-5607.