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Federal appeals court affirms ruling blocking North Dakota abortion ban

BISMARCK -- A federal appeals court on Wednesday affirmed a lower court's decision to block a 2013 North Dakota law that would have imposed the strictest abortion ban in the nation by outlawing abortion when a fetal heartbeat is detected, at abou...

BISMARCK - A federal appeals court on Wednesday affirmed a lower court’s decision to block a 2013 North Dakota law that would have imposed the strictest abortion ban in the nation by outlawing abortion when a fetal heartbeat is detected, at about six weeks of pregnancy.
The New York-based Center for Reproductive Rights, which filed the lawsuit in June 2013 on behalf of the Red River Women’s Clinic in Fargo, the state’s lone abortion provider, applauded the opinion issued by a three-judge panel of the Eighth Circuit Court of Appeals.
“It’s beyond time these anti-choice politicians in North Dakota and across the U.S. finally start focusing on laws and policies that actually matter to women and their families and put an end to relentless attacks on women’s health and rights,” president and CEO Nancy Northup said in a statement.
Approved by state lawmakers and signed by Republican Gov. Jack Dalrymple in March 2013, 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. Abortion rights advocates criticized it as the most restrictive abortion ban in the nation.
U.S. District Court Judge Daniel Hovland granted a preliminary injunction in July 2013 blocking the bill from taking effect. He then permanently blocked it with his ruling in April 2014, calling it “an invalid and unconstitutional law” and writing that the state had “presented no reliable medical evidence to justify the passage of this troubling law.”
More than 60 North Dakota lawmakers urged Attorney General Wayne Stenehjem to appeal Hovland’s ruling, in which the judge noted the Supreme Court had already ruled on the issue of viability.
The appeals court panel also cited the Supreme Court’s definition of viability, generally at about 24 weeks.
“Because there is no genuine dispute that H.B. 1456 generally prohibits abortions before viability – as the Supreme Court has defined that concept – and because we are bound by Supreme Court precedent holding that states may not prohibit pre-viability abortions, we must affirm,” their opinion stated.
However, Eighth Circuit Judges Lavenski Smith and Bobby Shepherd of Arkansas and Duane Benton of Missouri also wrote that “good reasons exist for the (Supreme Court) to reevaluate its jurisprudence,” and that “the continued application of the Supreme Court’s viability standard discounts the legislative branch’s recognized interest in protecting unborn children.”
Medical and scientific advances “further show that the concept of viability is itself subject to change,” they noted, citing differences in two landmark abortion cases, Roe v. Wade in 1973 and Planned Parenthood v. Casey in 1992.
“The Supreme Court has posited there are ‘logical and biological justifications’ for choosing viability as the critical point. … But this choice is better left to the states, which might find their interest in protecting unborn children better served by a more consistent and certain marker than viability,” the opinion stated.
Janet Crepps, senior counsel for the Center for Reproductive Rights, said she didn’t see anything new in the judges’ arguments. She said suggesting that the viability line should be returned to the states “is the same thing as saying the states should be allowed to ban abortion if they want to.”
“Obviously, we would prefer if every judge and justice in the United States strongly supported the constitutional right of women to obtain abortions, but the reality is they don’t – not just these judges, but justices on the Supreme Court and other judges across the country,” she said.
Crepps said she hopes North Dakota will allow the Eight Circuit’s opinion to stand and not pursue it further.
“But based on things they’ve said throughout this case, it wouldn’t surprise me if they asked the Supreme Court to review this,” she said.
Stenehjem said Wednesday his office was still reviewing the opinion.
“Once the review is complete, we will make a determination of what further action, if any, is advisable,” he said in an emailed statement.
The Fargo clinic’s director, Tammi Kromenaker, said she believed from the beginning that the ban – the earliest proposed in the nation – would not withstand judicial scrutiny.
She said she hopes Stenehjem will look at other early-pregnancy bans recently struck down by the courts and drop the case “and not say that North Dakota women are second-class citizens.”
“It’s nice to finally have it over. We’ve been waiting a long time,” she said, adding, “Even the fact that we had a victory today, women are going to hear about this, they’re going to hear the word ‘ban,’ and we’re going to have to do some work to make sure people know that this was a good decision for the women of North Dakota.”
Dalrymple was traveling to a National Governors Association meeting in West Virginia and was not immediately available for comment, spokesman Jeff Zent said.
Renee Stromme, executive director of the North Dakota Women’s Network, said the 2013 Legislature “clearly and knowingly overstepped their bounds” by passing the law.
“This continues the trend of rejection of political attempts to infringe on women's reproductive rights,” she said. “It is time for elected leaders to set aside this divisive debate and work toward improving the lives of women and children in the state."
Fargo resident Elizabeth Anderson, a regular at anti-abortion protests held Wednesdays at the Red River Women's Clinic, had heard about the fetal heartbeat law being struck down about an hour after the appeals court released its ruling.
Anderson, 17, said that a heartbeat should be the signal of life and viability for a child, and should make protection of the baby at that point constitutional.
“If life ends when the heart stops beating, then life should begin when the heart starts beating,” Anderson said.
Most of the anti-abortion protesters had not yet heard of the appeals court decision, but said it didn't sway their beliefs.
“I'm out here because I believe life begins at conception. I believe abortion is wrong. It’s taking a human life,” said Dave Foerster of West Fargo, N.D., as he held a bright blue sign reading, “Smile, your mother was PRO LIFE.”

Forum News Service reporter Helmut Schmidt contributed to this article. Reach Nowatzki at (701) 255-5607 or by email at mnowatzki@forumcomm.com .

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