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North Dakota petitions Supreme Court to take up fetal heartbeat abortion ban

BISMARCK - The fate of a North Dakota law that would establish the strictest abortion ban in the nation is now in the hands of nine U.S. Supreme Court justices.

A view of the U.S. Supreme Court building is seen in Washington, in this October 13, 2015 file photo. REUTERS/Jonathan Ernst/Files
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BISMARCK – The fate of a North Dakota law that would establish the strictest abortion ban in the nation is now in the hands of nine U.S. Supreme Court justices.

Attorney General Wayne Stenehjem has petitioned the high court to take up the 2013 law that would make it a Class C felony for a doctor to perform an abortion if the fetus has a detectable heartbeat, which is at about six weeks of pregnancy.

U.S. District Court Judge Daniel Hovland declared the law unconstitutional and permanently blocked it in April 2014 after the New York-based Center for Reproductive Rights and Bismarck attorney Thomas Dickson challenged it on behalf of the Red River Women’s Clinic in Fargo, the state’s lone abortion provider.  

A three-judge panel of the 8th U.S. Circuit Court of Appeals affirmed Hovland’s ruling in July.

Stenehjem, who was out of state and could not immediately be reached for comment Thursday, said last month that the state would ask justices to review the case. He called it “a longshot,” but said it’s his duty to defend the laws of the state. 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 set in 1973’s landmark Roe v. Wade decision and 1992’s Planned Parenthood v. Casey “fails to account for advancements in medical science establishing that an unborn child is viable from conception.”

The state also argues that 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.”

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. Justices have yet to act on a petition filed in September by the  Arkansas attorney general seeking review of that state’s blocked 12-week ban.

Center for Reproductive Rights attorney David Brown he sees no reason why the Supreme Court would accept the North Dakota case when it has consistently affirmed Roe v. Wade and a woman’s constitutionally protected right to choose an abortion.

“I don’t think anyone wants to see doctors going to prison for performing abortion,” he said. “I think this law is an example of politicians’ excess, if nothing else.”

If the Supreme Court follows its normal process, a decision to decline or accept the case will likely come in January or February, though justices could hold it indefinitely, Brown said.

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 Supreme Court heard involving a lawsuit against the state of North Dakota was in 1992.


Stenehjem, who next week will officially announce his candidacy for governor in 2016, has said filing the Supreme Court petition won’t cost taxpayers any money because Grand Forks attorney Ron Fischer, a special assistant attorney general for the case, agreed to draft the petition pro bono. Since January 2012, North Dakota has spent more than $314,000 defending its abortion laws in state and federal court, according to the attorney general’s office.

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