Legal challenge filed over ND ban on post-heartbeat abortions
BISMARCK -- Legal counsel for the state's only abortion clinic filed a lawsuit Tuesday in federal court here against the state over two recently passed anti-abortion laws.
The Center for Reproductive Rights, on behalf of the Red River Women's Clinic in Fargo, filed the suit arguing laws that prohibit an abortion once a heartbeat is detected and abortions on the basis of gender or genetic abnormality are unconstitutional.
North Dakota Attorney General Wayne Stenehjem, Cass County State's Attorney Birch Burdick and the North Dakota Board of Medical Examiners are listed as defendants in the lawsuit filed in U.S. District Court.
The suit comes a day after a failed attempt to refer the laws to a statewide vote, and joins the clinic's May 14 lawsuit challenging another law passed this year requiring physicians performing abortions to have admitting privileges at a nearby hospital.
Supporters of abortion rights have said the heartbeat law could outlaw abortion as early as six weeks into a pregnancy.
The new prohibitions on abortion, passed by state lawmakers this year, would go into effect Aug. 1. The lawsuit seeks a court order to stop them from being enforced until their legality is settled in court.
"I believe the North Dakota Legislature went too far and unfortunately they have to waste taxpayers' dollars to go to court when, over time, the laws will be found unconstitutional," said Tammi Kromenaker, director of the Red River Women's Clinic.
According to the center's complaint, if the laws were to take effect, the six-week ban would prohibit about 89 percent of the abortions currently performed at the clinic, creating a near-total ban on abortion in North Dakota.
"Faced with a loss of patient revenue of such magnitude, the Clinic would almost certainly have to close," the complaint says.
In a news release, Nancy Northup, president and CEO of the Center for Reproductive Rights, said the center is confident the court will see these laws as an unconstitutional assault on reproductive rights.
"In their scorched-earth campaign to rid North Dakota of its only reproductive health clinic that provides abortions and effectively end safe, legal abortions in the state, the politicians who advanced these laws made their hostility to women clear," Northup said. "In the service of their extremist ideology, these hostile politicians would ban abortion at a time before a woman may even know she is pregnant."
But state Rep. Bette Grande, R-Fargo, who sponsored the two laws listed in Tuesday's suit, said the laws will hold up in court.
"The Supreme Court will rule with us on both accounts," Grande said. "I have spoken to the attorney general repeatedly on both of these issues."
Grande said Tuesday's lawsuit wasn't a surprise.
"They said they were going to have a lawsuit the whole time, there's nothing new there, but it still comes down to the fact we have people like Gosnell out there and no checks and balance in the abortion industry," said Grande, referring to Kermit Gosnell, a Philadelphia abortion doctor found guilty of killing three infants after birth and overdosing one woman during an abortion. "We're finding out about babies and women dying, yet the center continues their lawsuits."
Christopher Dodson, executive director of the North Dakota Catholic Conference, said in a news release that it's disappointing the clinic, through the Center for Reproductive Rights, "is using the federal courts to thwart science, justice, and the will of the people of North Dakota."
Gov. Jack Dalrymple signed all three anti-abortion bills March 26, calling them a "legitimate attempt" to discover "the boundaries of Roe v. Wade."
The landmark 1973 U.S. Supreme Court decision prohibits bans on abortion prior to viability, at about the 24-week mark of a pregnancy.
The center's complaint says banning abortions prior to viability violates the Supreme Court's ruling, which protects a woman's equal protection rights under the Fourteenth Amendment.
Current North Dakota law says an abortion can only be performed prior to the time an unborn child may reasonably be expected to have reached viability. State law defines "viable" as "the ability of an unborn child to live outside the mother's womb, albeit with artificial aid."
If the laws were to take effect, under the six-week ban that came with House Bill 1456, a physician would be guilty of a Class C felony, facing a maximum five years in prison, $5,000 fine or both, if the physician performed an abortion once a fetal heartbeat was detected.
A physician can be exempt if the abortion is performed to prevent the woman from dying, prevent serious risk of substantial damage to the woman's body, or to save the life of the unborn child.
House Bill 1305, the ban on abortions based on gender or genetic abnormality, prohibits a physician from performing an abortion if the pregnant woman is seeking the procedure solely on account of the unborn child's sex or because the unborn child has been diagnosed with a genetic abnormality.
Violation of this law would be a Class A misdemeanor, punishable by a maximum one year in jail, $2,000 fine or both.
Kromenaker said each law is just as bad as the other, but the six-week ban would have the largest effect if it became law.
She highlighted a list of lawsuits in other states against similar anti-abortion laws as evidence that Tuesday's lawsuit will prevail in court.
According to the Center for Reproductive Rights:
-- A U.S. court struck down a 20-week ban in Arizona in late May.
-- A similar law in Idaho was ruled unconstitutional by a federal district judge in March.
-- A federal district judge issued a preliminary injunction in May against a 2013 Arkansas law that would ban abortions beginning at 12 weeks.
-- A state court temporarily blocked a 20-week ban in Georgia last December.