Judge stops N.D. abortion law from taking effect

By T.J. Jerke / Forum News Service

BISMARCK - A strict new North Dakota anti-abortion law banning abortions once a fetal heartbeat is detected, or after six weeks pregnancy, will not go into effect Aug. 1.

U.S. District Judge Daniel Hovland ruled Monday the law “is clearly an invalid and unconstitutional law.”

Hovland based his ruling on the 1973 Roe v. Wade decision by the U.S. Supreme Court that gave women the right to seek an abortion while balancing the state’s interest in protecting the woman’s health and the potential life of the unborn.

“The state has extended an invitation to an expensive court battle over a law restricting abortions that is a blatant violation of the constitutional guarantees afforded to all women,” Hovland wrote. “The United States Supreme Court has unequivocally said that no state may deprive a woman of the choice to terminate her pregnancy at a point prior to viability. (The law) is clearly unconstitutional.”

Gov. Jack Dalrymple signed the bill into law March 26, calling it “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, the constitutionality of this measure is an open question,” he told lawmakers.

Dalrymple then asked lawmakers to appropriate money for a litigation fund to defend the law. Lawmakers gave Attorney General Wayne Stenehjem $400,000.

Dalrymple’s spokesman Jeff Zent said he could not comment on Monday’ decision since it is an ongoing legal issue.

The law is one of four pass by the state Legislature this year putting restrictions on abortions.

The law was challenged by the Center for Reproductive Rights, a New York-based firm that filed a lawsuit in June on behalf of the Red River Women’s Clinic in Fargo, North Dakota’s only abortion clinic.

The two parties now have 30 days to inform the court whether there is a need to schedule a trial.

Clinic Director Tammi Kromenaker said she was pleased with Hovland’s temporary block and is glad he recognized the short timeline he had to put a halt to the law.

“We’re pleased women in North Dakota will not have less rights than women in other states,” she said. “We’re pleased we will not be forcing women to make a decision before they are ready.”

Kromenaker said patients have been worried about the clinic shutting down and have been scrambling to set up an appointment before the law was set to take effect.

“Women can now slow down, take their time, make their decisions and not rush into a decision they haven’t had time to talk to their loved ones about,” Kromenaker said.

The lawsuit asking to block the law from taking effect argued the six-week ban would effectively shut down the women’s clinic, denying women their right to seek an abortion.

In 2011, North Dakota Health Department records show 1,134 of 1,247 abortion -- or about 90 percent -- were performed after six weeks.

To determine if the laws should be temporarily stopped from taking effect, under federal procedure rules, the court had to assess if there was immediate and irreparable injury, loss or damage that would result to the clinic as a result of the law.

If the clinic had to comply with the new law, “they will undoubtedly have to close the doors of the clinic due to lack of patient revenue,” Hovland wrote.

Hovland also said without the injunction, women would have faced, “an imminent threat to their ability to exercise the constitutional right to choose to terminate a pregnancy and the clinic staff would face criminal charges if they continue to run the clinic and provide abortions to patients.”

Under the blocked law, anyone that performs an abortion after a heartbeat is detected would have faced a class C felony, punishable with a max five years in jail, $5,000 fine, or both.

“The threat of criminal prosecution, the potential for the closing of the clinic, and the violation of patient rights is more than sufficient to show a threat of irreparable harm,” Hovland said.

Hovland said the state tried to argue it wouldn’t be able to enforce the law, which was “aimed at protecting the potential life of an unborn child and a woman’s health,” which was granted to the state by the Supreme Court.

Hovland said it wasn’t enough to change his decision.

“The defendants have failed to demonstrate any benefit to maternal health by banning abortions beginning at approximately six weeks of pregnancy.”

The bill’s sponsor, Rep. Bette Grande, R-Fargo, said she wasn’t surprised the law was temporarily blocked.

“This is a normal procedure,” she said. “But I am surprised we have people that don’t think a beating heart is important. Our society has seen North Dakota as a pro-life state that has stated it’s compelling interest is in the life of the child.”

Without reading Hovland’s remarks, Grande said she couldn’t comment on the specifics of the injunction.

“I know the attorney general’s office will do everything that is correct and in the best interest of the state of North Dakota,” she said.

Kromenaker said Hovland only reiterated her arguments she made during the session when she told the legislature the bills were unconstitutional.

She said Monday’s injunction doesn’t bring her a sense of “I told you so,” but, “an unfortunate waste of taxpayer dollars and unfortunate reason for North Dakota to be on the map.”

“It’s a too bad feeling, a small vocal minority of anti-abortion legislators were able to forward this agenda and waste time, money and resources on measures that we were able to provide very sound information and let them know these would be challenged,” she said.