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ND petitions Supreme Court to take up fetal heartbeat abortion ban

BISMARCK - North Dakota Attorney General Wayne Stenehjem has petitioned the U.S. Supreme Court to take up a state law blocked last year that would prohibit abortions when a fetal heartbeat can be detected, which would be the most restrictive abor...

BISMARCK – North Dakota Attorney General Wayne Stenehjem has petitioned the U.S. Supreme Court to take up a state law blocked last year that would prohibit abortions when a fetal heartbeat can be detected, which would be the most restrictive abortion ban in the nation.

The law passed by state lawmakers in 2013 and signed by Republican Gov. Jack Dalrymple would make it a Class C felony for a doctor to perform an abortion if the fetus has a detectable heartbeat, which is at around six weeks of pregnancy.

“Through the legislative process, the people of North Dakota have selected the commencement of an unborn child’s heartbeat as the point at which abortions can no longer occur in the State, other than to save the life of the mother or another unborn child,” the petition states.

The New York-based Center for Reproductive Rights and Bismarck attorney Thomas Dickson filed a lawsuit in June 2013 challenging the law on behalf of the Red River Women’s Clinic in Fargo, the state’s lone abortion provider.

U.S. District Court Judge Daniel Hovland declared the law unconstitutional and permanently blocked it in April 2014. A three-judge panel of the U.S. Eighth Circuit Court of Appeals affirmed his ruling in July.

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Stenehjem, who could not immediately be reached for comment Thursday, said more than a month ago that the state would petition the nation’s highest court to review the case. He called it “a longshot,” but said it’s his duty to defend the laws of the state.

The Supreme Court’s website shows the petition for a writ of certiorari was filed Nov. 10. The state had until Nov. 30 to file the petition.

The 196-page petition argues that the Supreme Court should review the law because the fetus viability standard established in Roe v. Wade – the landmark 1973 U.S. Supreme Court decision that ruled states can’t ban abortion prior to viability, or about 24 weeks – and in 1992’s Planned Parenthood v. Casey “fails to account for advancements in medical science establishing that an unborn child is viable from conception.”

“In the 42 years since Roe was decided, and based upon the substantial uncontested evidence presented by North Dakota in this case, it can no longer be denied that human life begins at conception,” the petition states.

The state argues that the presence of a beating heart “has been used by both medical doctors and lay people alike for millennia in determining whether a human being is alive or dead.

“The presence of a beating heart in an unborn child should likewise serve as a legitimate point at which a state can ban abortions,” the petition states. “This is particularly true given the growing (and on this record, undisputed) medical evidence of significant physical and psychological harm to women from abortion, and the readiness of the state to assume complete responsibility for any unwanted child, without any civil or criminal liability to the mother.”

The Court of Appeals panel also wrote in its ruling that “good reasons exist for the (Supreme) Court to reevaluate its jurisprudence” on the viability standard, the state noted.

Observers on both sides of the abortion issue have said it’s unlikely the Supreme Court will grant review of North Dakota’s ban after it refused last year to hear Arizona’s case for its 20-week abortion ban. The high court has yet to act on a petition filed in September by Arkansas’ attorney general seeking to overturn an Eighth Circuit ruling that blocked a state law banning abortions at 12 weeks gestation or later.

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The Supreme Court receives about 10,000 petitions each year but grants and hears oral arguments in only about 75 to 80 cases, according to its website. The last case the U.S. Supreme Court heard involving a lawsuit against the state of North Dakota was in 1992.

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