BISMARCK – A federal judge on Wednesday struck down a North Dakota law that would have created the strictest abortion ban in the nation, calling the prohibition on fetal-heartbeat abortions “an invalid and unconstitutional law.”
“The North Dakota strict ban on abortions at the time when a ‘heartbeat’ has been detected – essentially banning all abortions as early as six weeks of pregnancy – cannot withstand a constitutional challenge,” U.S. District Court Judge Daniel Hovland wrote in his ruling filed in Bismarck.
Approved by lawmakers last year, House Bill 1456 would have made it a Class C felony for a doctor to perform an abortion if the fetus has a detectable heartbeat.
The New York-based Center for Reproductive Rights filed a legal challenge in June on behalf of the Red River Women’s Clinic in Fargo, the state’s lone abortion provider.
Hovland granted a preliminary injunction in July that temporarily blocked the bill from taking effect. His ruling Wednesday permanently blocks the law.
“Today’s decision puts a stop to this attempt by North Dakota politicians to send the women of their state back to the dark days before Roe v. Wade, when reproductive health care options were limited at best and deadly at worst,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a news release
Attorney General Wayne Stenehjem, whose office defended the law, said he was still digesting the ruling.
“The proponents of the legislation were hoping that this would be the case that would ultimately be a direct challenge in the Supreme Court to Roe v. Wade,” he said. “But we’ll have to decide what course we want to take from here.”
Stenehjem said he plans to confer with the other defendants in the lawsuit -- Cass County State’s Attorney Birch Burdick and the state Board of Medical Examiners -- and Gov. Jack Dalrymple about how to proceed.
Lawyers for the clinic argued that the law was unconstitutional on its face because it would ban abortions prior to viability of the fetus. The state countered that a factual dispute exists over when a fetus is viable -- arguing that it occurs at the point of conception -- and insisted the law didn’t ban all abortions prior to viability because they could be performed up until a heartbeat is detected.
In his ruling Wednesday, Hovland noted the Supreme Court has already ruled on the issue of viability, stating, “This court is not free to impose its own view of the law.”
Hovland wrote that the state “has presented no reliable medical evidence to justify the passage of this troubling law.”
The clinic’s director, Tammi Kromenaker, said she was “very pleased” but not surprised by Hovland’s ruling. As for a possible appeal by the state, she vowed to continue the fight for women’s rights and said the state “needs to consider their citizens’ wishes and taxpayer dollars.” Lawmakers set aside $400,000 for Stenehjem to defend the law.
“I would hope that when the next Legislature meets, we can come up with real solutions and maybe help women prevent unintended pregnancies in the first place instead of attempting to use women as pawns in an ideological game,” she said.
State Rep. Bette Grande, R-Fargo, who introduced the bill, said Hovland’s ruling was expected and is “just the first step” in moving toward the appellate process and eventually the U.S. Supreme Court.
"It's time to have the court, the big court, take a look at this process again because we know how much science and medical knowledge has been gained over these 40 years,” she said.
The law was one of four abortion laws passed by the Republican-controlled Legislature and signed by Dalrymple last year. Of the four laws, the only one not to face a legal challenge was a ban on abortion after more than 20 weeks into the pregnancy, because the Fargo clinic only performs abortions up to 16 weeks of pregnancy.
Grande pointed out that three of the four laws passed are now in effect: the 20-week ban, a ban on abortions for gender or genetic abnormality reasons and a requirement that doctors who perform abortions have admitting privileges at a nearby hospital. A lawsuit alleging that part of the latter law regulating medication abortions violates the state constitution is pending before the state Supreme Court.
The state’s residents also will vote in November on a constitutional amendment that would define life at conception.
"I think North Dakotans have been served well by this process,” Grande said.
Hovland concluded his ruling by stating that “the controversy over a woman’s right to choose to have an abortion will never end.
“The issue is undoubtedly one of the most divisive of social issues,” he wrote. “The United States Supreme Court will eventually weigh in on this emotionally-fraught issue but, until that occurs, this Court is obligated to uphold existing Supreme Court precedent.”