BISMARCK – North Dakota Attorney General Wayne Stenehjem said Wednesday he will likely ask the U.S. Supreme Court next week to review an appeals court ruling that permanently blocked a state law banning abortions when a fetal heartbeat can be detected.
“It’s a longshot to appeal it, but still the (state) statute says the attorney general shall defend (the state’s laws), and I think most people understand that’s what we need to do,” he said.
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, which is at around six weeks of pregnancy, making it the strictest abortion ban in the nation.
It was one of three anti-abortion bills that Gov. Jack Dalrymple signed into law in March 2013, at the time calling them “a legitimate attempt by a state legislature to discover the boundaries of 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.
In an opinion issued July 22, a three-judge panel of the 8th U.S. Circuit Court of Appeals affirmed a ruling last year by U.S. District Court Judge Daniel Hovland in Bismarck that permanently blocked the law from taking effect.
Stenehjem said Grand Forks attorney Ron Fischer, who he appointed as a special assistant attorney general for the case, has offered to draft the petition to the Supreme Court pro bono, so it will not cost North Dakota taxpayers any money. The Supreme Court receives about 10,000 petitions annually, but only takes 75 to 80 cases per year, he noted.
The New York-based Center for Reproductive Rights challenged the law in June 2013 on behalf of the Red River Women’s Clinic in Fargo, the state’s lone abortion provider.
“North Dakota’s abortion ban is as cruel as it is unconstitutional, flying in the face of decades of Supreme Court precedent while threatening women’s health in the process,” the center’s senior counsel, Janet Crepps, said in an emailed statement Wednesday. “We are confident the nation’s highest court will refuse to review the measure.”
Hovland granted a preliminary injunction in July 2013 and permanently blocked the law 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.”
In affirming Hovland’s ruling, the appeals court panel wrote that it was bound by Supreme Court precedent.
However, the three judges – two from Arkansas and one from Missouri – also left what some interpreted as an opening for petitioning the high court, writing that “good reasons exist for the (Supreme Court) to reevaluate its jurisprudence,” and that medical and scientific advances show the concept of viability is subject to change.
The choice, the panel wrote, “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.”
Tuesday is the deadline for the state to petition the Supreme Court to hear the case. Stenehjem said he has asked for an extension but hasn’t heard back from the high court.
Stenehjem, a Republican, is expected to announce soon a run for governor in 2016 – he formed an exploratory committee last week to accept campaign contributions after receiving unsolicited checks from supporters – and he’s not worried that petitioning the Supreme Court to review the case may be viewed by some as catering to the party’s conservative base.
“That might be more the case if there wasn’t such disagreement among the right-to-life groups about the wisdom of it,” he said. “All I can do is follow the statute.”
Christopher Dodson, executive director and general counsel for the North Dakota Catholic Conference, said there are differing views – but “not nasty infighting” – among anti-abortion advocates on whether this is the right time or case to bring the issue to the Supreme Court.
Dodson said his own legal opinion and the view of National Right to Life is that they don’t have enough votes in their favor on the Supreme Court.
“And if we send something up and it was accepted for review, there’s always the possibility that a majority of the court could re-establish the right to an abortion and in stronger legal terms than it exists now,” he said.
North Dakota Right to Life Chairman John Trandem said the group took no position on whether the state should ask the Supreme Court to overturn the appeals court’s ruling.
“I guess we trust the attorney general to weigh the factors at hand and make the determination,” he said.
Dodson said people on both sides feel it’s “very unlikely” the high 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.
Last week, Arkansas’ attorney general petitioned the Supreme Court to overturn an 8th Circuit ruling that blocked a state law banning abortions at 12 weeks gestation or later.Stenehjem said he’s tracking that petition, but doesn’t expect the high court to act on it before Tuesday’s deadline for North Dakota.
Emails obtained through an open records request by Forum News Service show at least four Republican state lawmakers encouraged Stenehjem to continue fighting for the law. The bill’s main sponsor, former state Rep. Bette Grande of Fargo, who lost her re-election bid last November, when 64 percent of state voters also rejected a “right to life” constitutional amendment, wrote in an email to Stenehjem last month, “You and I have always agree (sic) we should take this as far as it can go.”
Stenehjem said that while “you can always have discretion” in deciding the course of a case, state law directs the attorney general to “defend all actions and proceedings against any state officer in the attorney general's official capacity in any of the courts of this state or of the United States” – no matter how controversial the case may be.
“That duty is rather clear,” he said.