A federal judge in Bismarck, North Dakota, on Wednesday struck down the strictest anti-abortion law in the nation, a ban on ending pregnancy after a fetal heartbeat is detected — that is, at about six weeks. Separately, U.S. District Judge Daniel L. Hovland rejected a legal maneuver by lawyers for the state seeking to prohibit all abortions in North Dakota, at any point in pregnancy.
State legislatures across the nation in the past two years have passed a number of new laws to restrict abortion rights, but so far, only one of those has been at issue before the Supreme Court. The Justices on January 14 refused to hear a case from Arizona; the denial order provided no explanation.
The Arizona law would have banned abortions at twenty weeks of pregnancy, some four weeks before most experts believe a fetus could survive outside of the woman’s body, if delivered alive. The Supreme Court has said repeatedly that a state may not ban abortions until after fetal viability at the earliest.
The North Dakota law (H.B. 1456), passed by its legislature last year, did not set a specific number of weeks during pregnancy at which an abortion could no longer be performed. But it did specify that no abortion could be performed after a doctor detected a heartbeat — except in a medical emergency threatening the woman’s life or threatening grave medical harm to her. All sides involved in the case agreed that a heartbeat usually can be detected about six weeks into a pregnancy.
The law was challenged by the operators of the Red River Women’s Clinic in Fargo, the only facility in the state that performs abortions at any point. At that clinic, doctors will not perform an abortion until the fifth week of pregnancy. Thus, the practical effect of the new North Dakota law was to ban almost all abortions — that is, except for a brief interval in the fifth week.
Judge Hovland ruled the ban unconstitutional, noting that the Supreme Court for more than forty years has never abandoned the constitutional conclusion that a state may not ban abortion until after the point of fetal viability.
The judge’s decision actually went further than nullifying the fetal heartbeat provision of the law. As this case unfolded in his court, lawyers for the state had changed their position, and argued that fetal viability begins at the moment of conception — that is, the very point medically when pregnancy begins. Thus, they had contended that no abortions could be performed at any time in pregnancy.
That argument, Judge Hovland said, was designed to mount a direct attack on the Supreme Court’s most basic abortion rights decision — the 1973 ruling in Roe v. Wade. He had no authority to second-guess that ruling, the judge said.
The state of North Dakota now has the option of challenging the new decision before the U.S. Court of Appeals for the Eighth Circuit.
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