If the idea of long and expensive legal battles was supposed to dissuade North Dakota Gov. Jack Dalrymple from signing into law some of the country’s most restrictive abortion measures, it didn’t work. Less than 24 hours after the bills arrived on his desk from the legislature, the Republican governor has signed a ban on abortions at the point of embryonic heartbeat, a bill that could put the state’s only clinic out of business, and a ban on alleged gender- and disability-based abortions.
According to the governor’s press release, the threat of protracted legal action is actually what encouraged him to sign the laws: “I have signed HB 1456 which would ban abortions after the detection of a fetal heartbeat. Although the likelihood of this measure surviving a court challenge remains in question, this bill is nevertheless a legitimate attempt by a state legislature to discover the boundaries of Roe v. Wade. Because the U.S. Supreme Court has allowed state restrictions on the performing of abortions and because the Supreme Court has never considered this precise restriction in HB 1456, the constitutionality of this measure is an open question. The Legislative Assembly before it adjourns should appropriate dollars for a litigation fund available to the Attorney General.”
Forcing the courts to consider a new threshold for overturning Roe has long been a goal of the anti-choice movement, although only the most extreme of them believe that jumping straight to a “heartbeat” ban is the best way to provoke a challenge. Most legal experts who oppose abortion have advised taking a more incremental pace by enacting so-called “fetal pain” bans, fearing the more extreme heartbeat bans would reaffirm the tenets of Roe.
But the heartbeat ban isn’t the only legal challenge Dalrymple is intent on pursuing. Again, from his press release: “I have signed SB 2305 [a targeted regulation of abortion providers (TRAP) bill] which requires admitting and staff privileges at a nearby hospital for any physician who performs abortions in North Dakota. The added requirement that the hospital privileges must include allowing abortions to take place in their facility greatly increases the chances that this measure will face a court challenge. Nevertheless, it is a legitimate and new question for the courts regarding a precise restriction on doctors who perform abortions.”
Roe is gone. The chaos is just beginning.
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If the governor is seeking a legal fight over shutting down the Red River Women’s Clinic, the only abortion clinic in the state and the target of the TRAP bill, the Center for Reproductive Rights (CRR) stands ready to defend the clinic. “There is no question that the goal of anti-choice politicians in North Dakota is to shut down the state’s only abortion provider, and shut down women’s access to safe and legal abortion along with it,” CRR President Nancy Northup said on the organization’s website. “We are prepared to take whatever steps necessary to keep the Red River Women’s Clinic’s doors open to the nearly 1,500 women from North Dakota and surrounding area who seek reproductive health care services there each year.”
CRR isn’t the only group to point out the unconstitutional nature of these new laws. “This sweeping package of bills will not stand up to constitutional scrutiny,” Sarah Stoesz, president and CEO of Planned Parenthood Minnesota, North Dakota, South Dakota, said in a statement. “But as a result of North Dakota’s leaders’ disregard for women’s health, the state will endure months and years of drawn-out litigation costing taxpayers hundreds of thousands of dollars. What a reckless and appalling waste of resources. With his signature, today Governor Dalrymple severely compromised the health and well-being of all North Dakota women and their families.”
The American Civil Liberties Union (ACLU) also released a statement condemning the move. “With the stroke of the governor’s pen, North Dakota politicians have taken away the right of a woman to make the best decision for herself and her family,” said ACLU Executive Director Anthony D. Romero. “These dangerous laws will prevent women, regardless of their circumstances, from accessing safe and legal abortion care. It is time that our elected representatives stopped playing politics with women’s health.”
All of the new abortion restrictions are scheduled to go into effect on August 1, although it’s highly likely that the heartbeat ban will be blocked before it ever goes into effect. The bill requiring admitting privileges will be watched much more closely by all parties; without admitting privileges, the state’s sole abortion clinic will be unable to perform abortions without court intervention. A similar law in Mississippi has not yet been found unconstitutional even though it put the only clinic in that state in jeopardy. A federal judge allowed it to go into effect but held the doctors and clinic from being punished under the law. The state has now begun the process of revoking the clinic’s license for being out of compliance.