Health & Medicine

March 27, 2013

Abortion limits are toughest in U.S.

Gov. Jack Dalrymple of North Dakota approved the nation's toughest abortion restrictions on Tuesday, signing into law a measure that would ban nearly all abortions and inviting a legal showdown over just how much states can limit access to the procedure.

FARGO, N.D. – Gov. Jack Dalrymple of North Dakota approved the nation's toughest abortion restrictions on Tuesday, signing into law a measure that would ban nearly all abortions and inviting a legal showdown over just how much states can limit access to the procedure.

Dalrymple, a Republican, signed three bills passed by the Republican-controlled Legislature in Bismarck.

The most far-reaching law forbids abortion once a fetal heartbeat is "detectable," which can be as early as six weeks into a pregnancy. Fetal heartbeats are detectable at that stage of pregnancy using a transvaginal ultrasound.

Most legal scholars have said the law would violate the Supreme Court's finding in Roe v. Wade that abortions were permitted until the fetus was viable outside the womb, generally around 24 weeks. Even some leaders of the anti-abortion movement nationally have predicted that laws banning abortion so early in pregnancy are virtually certain to be declared unconstitutional by federal courts.

"Although the likelihood of this measure surviving a court challenge remains in question, this bill is nevertheless a legitimate attempt by a state legislature to discover the boundaries of Roe vs. Wade," Dalrymple said in a statement.

The Supreme Court, he added, "has never considered this precise restriction" in the heartbeat bill.

"I think there's a lot of frustration in the pro-life movement," said Paul B. Linton, a constitutional lawyer in Illinois who was formerly general counsel of Americans United for Life. "Forty years after Roe v. Wade was decided, it's still the law of the land."

The new laws place North Dakota, for the moment at least, at the center of sharp efforts in several Republican-controlled states to curb abortion rights.

Three weeks ago, Arkansas lawmakers adopted what at the time was the country's most stringent abortion limit, also tied to detection of a fetal heartbeat and banning the procedure at 12 weeks of pregnancy. That is the point at which a heartbeat can be detected using an abdominal ultrasound.

The Arkansas and North Dakota laws have offered the first victories for an emerging faction of the anti-abortion movement that is frustrated by the limited progress in curbing abortions and hopes that the Supreme Court might be ready for a radical rethinking.

But that approach has caused divisions within the movement, with Linton and others calling it wishful thinking.

The North Dakota fetal heartbeat law and others like it, Linton said, "have no chance in the courts."

Abortion-rights advocates who had gathered to urge the governor to veto the bills quickly condemned his decision as effectively banning abortion in the state and as an attack on women. Without judicial intervention, the three bills are scheduled to take effect Aug. 1.

"In the past it's been, 'We're going to try and make it more difficult, more hoops, more obstacles for women to have to jump through or jump over,' " said Tammi Kromenaker, the director of Red River Women's Clinic in Fargo, the state's only abortion provider. "But this is specifically: 'Let's ban abortion. Let's do it. Let's challenge Roe v. Wade. Let's end abortion in North Dakota.' "

The Center for Reproductive Rights in New York condemned the new laws and said it would file a challenge to the fetal heartbeat ban.

Dalrymple also affirmed a law to require doctors performing abortions to get admitting privileges at a local hospital, which could force the closing of the Red River clinic. A similar law adopted by Mississippi last year is under challenge in federal court.

He also signed a third law that would prevent abortion in cases of gender preference or – the first of its kind in the nation – genetic defects, such as Down syndrome.

The signings come on top of a resolution approved by the North Dakota Legislature last week to amend the state constitution to assert that life begins at conception, a move that would give a fetus the rights of a person and outlaw virtually all abortions.

The so-called personhood measure, asserting that "the inalienable right to life of every human being at any stage of development must be recognized and defended," will go on the ballot next year. Such measures have been voted down in Mississippi and Colorado.

Dalrymple acted on the measures less than 24 hours after they were advanced to his desk.

Similar measures to ban abortions when fetal heartbeats are detected are under consideration in several other states, including Kansas and Ohio.

The larger, established opponents of abortion including the National Right to Life, Americans United for Life and the Roman Catholic Church have not supported fetal heartbeat proposals, saying that until the court's composition changes, they could be counterproductive.

These groups have instead pursued more incremental measures, such as waiting periods, requiring sonograms and imposing stricter regulations on doctors and clinics and, in 10 states so far, bans on abortion at 20 weeks, an approach that is nearer to the viability threshold but is under challenge in the courts.

"There are two clashing forces in the anti-abortion movement now," said Caitlin Borgmann, a law professor and abortion-rights advocate at City University of New York. "The incrementalists are chipping away at Roe and the others are getting impatient."

Abortion-rights advocates in North Dakota have felt particularly on the defensive this year because of the sheer number of bills introduced and their sweeping scope.

Previously approved abortion measures requiring the state's lone provider to do such things as post new signs, fill out more paperwork, distribute literature and offer ultrasounds were seen as burdensome but manageable.

Some say that North Dakota lawmakers and activists opposed to abortion aggressively pushed their cause this year because they were emboldened by the huge cash reserves from oil revenue that the state can use to fight legal challenges to its laws and by the successful passage of abortion restrictions elsewhere in the country.

In signing the measure, the governor asked the Legislature to appropriate money to pay to defend a court challenge.

State Rep. Bette Grande, a Republican who was the primary sponsor of the heartbeat bill, praised the governor's decision.

"This is just a great day for babies in North Dakota," she said, expressing confidence that it would withstand the court challenges.

"The state has a compelling duty to find what is the potential life of a fetus," she said. "What is more compelling and proof of life than a heartbeat? It meets the criteria of Roe v. Wade."NORTH DAKOTA

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