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Supreme Court refuses to review ND's fetal heartbeat abortion ban

BISMARCK - The director of North Dakota's lone abortion clinic celebrated the U.S. Supreme Court's refusal Monday to review a struck down state law that would have banned abortion at about six weeks of pregnancy.Tammi Kromenaker, who has criticiz...

The U.S. Supreme Court's ruling on North Dakota comes six days after justices refused to review Arkansas’ ban on abortion at 12 weeks of pregnancy. REUTERS
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BISMARCK – The director of North Dakota's lone abortion clinic celebrated the U.S. Supreme Court's refusal Monday to review a struck down state law that would have banned abortion at about six weeks of pregnancy.

Tammi Kromenaker, who has criticized the law as an attempt to close the clinic, said it was "a relief to have the final say on the final law from 2013 that we've been battling for the last nearly three years."

"We're extremely pleased that the Supreme Court has said that North Dakota women have the same rights as women all across this country, and North Dakota women should not be used as pawns in extremist politicians' games," she said.

North Dakota Attorney General Wayne Stenehjem, who petitioned the Supreme Court in November to take up the case, said he knew the chances were diminished after justices last week refused to review Arkansas' ban on abortion at 12 weeks of pregnancy, after previously declining to review Arizona's 20-week abortion ban.

"We knew just going in it was going to be a long shot," he said, adding, "This is the end of what we can do."


Republican Gov. Jack Dalrymple signed the GOP-passed law in 2013, making it a felony for a doctor to perform an abortion if the fetus has a detectable heartbeat.

"The state Legislature has done what it can to discover the boundaries of Roe v. Wade," Dalrymple said in a statement Monday, referring to the landmark 1973 U.S. Supreme Court decision that ruled states can't ban abortion prior to viability of the fetus, generally at about 24 weeks.

But the New York-based Center for Reproductive Rights and Bismarck attorney Thomas Dickson quickly challenged North Dakota's heartbeat law on behalf of the clinic, which performs about 1,200 abortions per year.

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 unanimously affirmed Hovland's ruling in July, based on Supreme Court precedent. However, the panel also said good reasons exist for the high court to re-evaluate the viability standard given medical and scientific advances, saying it "discounts the legislative branch's recognized interest in protecting unborn children."

Stenehjem petitioned the Supreme Court in November to review the law, one of four abortion-restricting bills passed by lawmakers in 2013. The only one not to face a legal challenge was a ban on abortion after more than 20 weeks into the pregnancy, because the Fargo clinic only performs abortions up to 16 weeks of pregnancy.

The attorney general's office has spent more than $320,000 on abortion-related litigation since February 2012, including about $240,000 defending the fetal heartbeat law in federal court, Stenehjem said.

Stenehjem, who is running for governor, noted that Ron Fischer, a special assistant attorney general, agreed to draft the Supreme Court petition pro bono, so the only cost to the state was the out-of-pocket expenses of $5,975, mostly for printing costs. He said the lawyer fees would have been about $40,000.


Former state Rep. Bette Grande of Fargo, the Republican who introduced the six-week ban in 2013, said she wasn't surprised by Monday's Supreme Court decision and believes the cost of defending the law was "absolutely worth it."

"It has given so much to the mothers and the people to know what is in the womb. It's to help make the proper decisions for life," she said.

But Senate Minority Leader Mac Schneider, a Grand Forks Democrat and an attorney, said that while he respects North Dakotans' beliefs on both sides of the issue, "as a legal matter, this law's constitutionality wasn't even a close call." He said the energy and resources that went into the abortion laws would have been better spent on efforts to reduce unplanned pregnancies and support the women faced with them.

North Dakota Women's Network Executive Director Renee Stromme applauded the Supreme Court's refusal to review the law, noting many women don't even know they're pregnant before six weeks.

"The Legislature clearly and knowingly overstepped their bounds," she said in a statement.

State lawmakers didn't introduce any anti-abortion bills during the 2015 session, which came on the heels of a November 2014 election in which 64 percent of statewide voters rejected a constitutional amendment that would have recognized and protected life "at any stage of development." Both Grande and the measure's lead sponsor, Bismarck GOP Sen. Margaret Sitte, also lost their re-election bids.

"I think that kind of settled the issue," Schneider said.

Three of four 2013 abortion-related bills in effect


The North Dakota Legislature passed, and Gov. Jack Dalrymple signed, four bills in 2013 aimed at restricting abortions. Three of them are still in effect. Here's the status of each:

House Bill 1305: This law banning abortions performed solely for gender selection or genetic abnormalities was initially challenged by the Red River Women's Clinic in Fargo, but the challenge was dropped in September 2013 because the clinic doesn't perform abortions based on those factors.

House Bill 1456: The ban on abortions when a fetal heartbeat can be detected, at about six weeks of pregnancy was challenged by the clinic and a federal judge in Bismarck halted its implementation. The U.S. Supreme Court on Monday denied the state's petition to review the law, so it remains blocked.

Senate Bill 2305: The Fargo clinic also challenged this law requiring physicians who perform abortions to have admitting privileges at a nearby hospital, but the lawsuit was dismissed in 2014 after Sanford Health granted admitting privileges to the clinic's doctors. The U.S. Supreme Court is expected to rule on a similar Texas law by June, and that decision could affect North Dakota's law.

Senate Bill 2368: Known as the "fetal pain" bill, this ban on abortions before 20 weeks of pregnancy was not challenged by the clinic because the clinic doesn't provide abortions past 16 weeks of pregnancy. The law remains in effect.

Compiled by Mike Nowatzki

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