Judge blocks North Dakota's restrictive abortion law
Anti-abortion rights protesters demonstrate outside of Red River Women's Clinic on October 25, 2012. North Dakota's sizable Roman Catholic community, which makes up about 30 percent of the state's residents, helps account for the persistence of the demonstrations at the clinic. The bishop of the Diocese of Fargo leads an annual march and protest to the clinic.
July 22nd, 2013
02:19 PM ET
10 years ago

Judge blocks North Dakota's restrictive abortion law

(CNN) - One of the most restrictive abortion laws in the U.S. was temporarily blocked from enforcement after a federal judge said Monday that North Dakota's pre-viability provisions were "invalid and unconstitutional."

The state legislature had passed a law that would ban an abortion when a fetal heartbeat was detected–sometimes as early as six weeks into pregnancy. The legislation was set to go into effect August 1, but Judge Daniel Hovland granted a temporary injunction, after a Fargo women's clinic filed a lawsuit last month.

The judge noted that the law would ban 90% of abortions performed at Red River Women's Clinic, North Dakota's only clinic that performs abortions. While proponents say the law enhances medical safety for women in the state, opponents argue it makes it nearly impossible for women to have an abortion.

In his decision, the judge said "there is no question" that the law known as HB 1456 directly contradicts a "litany" of Supreme Court cases that address restraints on abortion, including Roe v. Wade.

"The State of North Dakota has presented no evidence to justify the passage of this troubling law," he wrote. "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."

With the law, North Dakota would have had the strictest limit in the country. A number of states have passed abortion bans after 20 weeks, such as Texas, Nebraska, Kansas, Louisiana, Oklahoma, Indiana and Alabama. Arkansas has a ban in place for pregnancies beyond 12 weeks.

Some states have no time limit, while others allow abortion up to the end of the second trimester, about 27 or 28 weeks into the pregnancy.

"I respect the attention Judge Hovland has given to this case," said North Dakota Attorney General Wayne Stenehjem on Monday. "It is also important to remember that courts routinely grant preliminary injunctions in these types of cases, so this was not unusual or unexpected. This is an early stage of the proceeding. As it is the constitutional duty of the Attorney General to defend legislation enacted by the North Dakota Legislature, we will continue to defend the challenged statutes through the established legal process."

Abortion rights groups hailed the judge's order.

"The nation's most extreme abortion ban has been blocked, and the message to hostile politicians could not be clearer: the rights of women guaranteed under the U.S. Constitution and protected by 40 years of Supreme Court precedent cannot be legislated away," said Bebe Anderson of Center for Reproductive Rights, which helped bring the lawsuit. "Today's decision ensures for the moment that the women of North Dakota won't need to worry whether they will still have the same constitutionally protected rights as women living in other parts of the United States."

Sarah Stoesz, the president of the regional chapter of Planned Parenthood, wrote the ruling "means that women throughout the state will have access to safe and legal abortion while the state continues to pursue its attack on women’s health in the courts.”

Proponents of the North Dakota bill anticipated the law would be challenged in the courts shortly after the legislation passed back in March.

When signing the bill, Republican Gov. Jack Dalrymple acknowledged the law had a tough road ahead.

"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," the governor said in a statement, directing the legislature to set aside funds to cover the cost of the expected legal battle.

The state now has the option of asking a federal appeals court in St. Louis to step in and allow the law to go into effect while the court challenges continue, a process that could take several months. An eventual appeal to the U.S. Supreme Court is a possibility.

The law would have targeted doctors rather than women having an abortion, with a maximum punishment of five years in prison and a $5,000 fine. Doctors, if convicted, could also lose their license to practice medicine. Women who have the abortion may not be prosecuted.

While the law does not rule out abortions when a medical emergency threatens the life of a woman, it does not allow for an abortion in the case of rape or incest.

Abortion was legalized in all 50 states in 1973 by the U.S. Supreme Court in Roe v. Wade. Statutory time limits on when abortions can take place, however, vary from state to state.

For the justices, Roe reflected earlier cases involving the right to privacy. That "right," wrote Justice Harry Blackmun in the main opinion for the court, is "broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

But the ruling was a qualified one, and that fact has been used by abortion opponents over the decades in their efforts to narrow the scope of other abortion provisions. Some activists have said they hope restrictions like those imposed by North Dakota would lead to a fundamental rethinking of access to abortion by the Supreme Court in coming years.

The "qualified right" established by the high court found its form in the controversial "trimester analysis" laid out by the justices in Roe: permitting no government regulation during the first three months of a pregnancy; allowing limited regulation in the second trimester to protect the woman's health and safety; and granting government the power to ban abortions during the third trimester - a time when, medical consensus has concluded, the fetus is capable of living on its own.

- CNN's Chelsea J. Carter and Carma Hassan contributed to this report.

Filed under: Abortion • North Dakota
soundoff (147 Responses)
  1. Dar

    I'll bet the citizens of ND are happy to know that the state has so much money that it can pass laws like this knowing they will be challenged in court and most likely found unconstututional. Apparently the economy there is doing so well that everyone has a job so this is the only problem the ND politicians have to address.

    As a matter of fact, YES ND is doing quite well standing on it's own without the help of the left wing fools who spend until there is nothing left.

    July 22, 2013 03:58 pm at 3:58 pm |
  2. Ote

    The unborn are human and have rights too–the right to live being in the forefront. Isn't it odd that the Left fights so hard to discriminate against, and murder, defenceless human life? It only goes to show that the Lefties don't think in terms of right and wrong, but instead in terms of convenient and inconvenient. It's a shame that they hear the last heartbeat or understand the agony suffered in silence during the execution. And don't doctors take an oath not to cause harm?

    July 22, 2013 03:58 pm at 3:58 pm |
  3. Ryan

    Once again, a judge looks to "prior rulings" than the injustice sitting right in front of him. This isn't about prior rulings, this is about recognizing life and the right to live.

    July 22, 2013 03:58 pm at 3:58 pm |
  4. Ote

    Pardon...It's a shame that they CAN'T hear..."

    July 22, 2013 03:59 pm at 3:59 pm |
  5. steven

    BLAKE.... and what do you think that you are doing when you try to ban abortion.. you are imposing your will upon a female wishing to have and abortion...a legal procedure according to the supreme court in roe v wade....

    July 22, 2013 03:59 pm at 3:59 pm |
  6. J Bischoff

    It angers me when they are simply imposing their religious zeal to what is essential the woman's body – no one by the person who has to carry this child and/or her partner should be the ones who decide whether or not they want to. That is HER body who needs to carry this child.
    "...it does not allow for an abortion in the case of rape or incest." So if she's raped, then the woman is basically forced to bear a child from such a disturbing act just to satisfy some law? Isn't that just forcing her against her will again?

    July 22, 2013 03:59 pm at 3:59 pm |
  7. Jack Be Humble

    The judicial branch of our government has a number of functions... the most important I think is preventing overreach by legislatures that pass laws in the moment (buoyed by partisan politics) to restrict the rights and safety of the minority. In this case, the court's intervention is appropriate.

    If higher courts overturn this, so be it. But this is our system of judicial review at work.

    July 22, 2013 03:59 pm at 3:59 pm |
  8. cebundy

    Great news! The governor is crazy, the Supreme Court already established the boundaries of abortion. What a waste of time and resources just to try to deny women their rights.

    July 22, 2013 04:00 pm at 4:00 pm |
  9. Pander Bear

    Wow, the comments from the right wingers here shows just how unhinged they are.

    July 22, 2013 04:00 pm at 4:00 pm |
  10. JD

    i'm not religious whatsoever...but we kill babies in the country. its sick, really.

    July 22, 2013 04:00 pm at 4:00 pm |
  11. Matthew Kilburn

    "I wonder how many of the politicians that voted for the ND bill have adopted a child? Or, how many anti-abortion proponents have done so?"

    Typical liberal mentality – if you won't let someone eliminate their responsibility, than you should be morally obligated to assume that responsibility for them. Sorry, no. Pregnancy, in the extreme majority of cases, is the direct and logical result of voluntary actions undertaken by the woman. Actions that result in the creation of a unique and growing human life. Why is it anyone else's job to help her avoid the consequences or associated responsibilities of her own choices?

    And, just curious....but what percentage of pregnancies circa 1900 or 1920 or 1940 or even 1950 were "planned"? And yet society got along just fine, and no, we did not have 20% of all pregnant women dying via back alley abortions.

    July 22, 2013 04:00 pm at 4:00 pm |
  12. rschier

    "So, you only consider a country to be developed if it willingly consents and condones the destruction of tens of millions of its future citizens. Gotcha."
    Last time I checked, we already have "tens of millions of future citizens" to go around, they are in very
    abundant supply.

    July 22, 2013 04:01 pm at 4:01 pm |
  13. talkingheads

    @preventtheproblem – Yes! If they can have a say in women's reproductive rights, why can't women have a say in theirs?

    July 22, 2013 04:01 pm at 4:01 pm |
  14. Zeke2112

    @Ed1: I suppose you'll be same one whining about feeding all the kids born because you are the righteous judge of responsibility.

    Federal law already prevents your tax dollars from paying for abortions. Thanks for playing.

    July 22, 2013 04:01 pm at 4:01 pm |
  15. Quixote

    Trying to talk sense to right wing imbeciles is like trying to teach a fish to ride a bicycle.

    If my wife and i have an unintended pregnancy, we get to decide what to do about it. Not you. Not any church. And not any government. Same goes for any of my daughters.

    July 22, 2013 04:01 pm at 4:01 pm |
  16. steven

    pro life.....you sound like god you are such a wonderful caring person...hah!

    July 22, 2013 04:02 pm at 4:02 pm |
  17. ThinkAgain

    @pro-life passion: "there is nothing in this world more honorable than standing up for those who cannot stand up for themselves, giving a voice to those who cannot speak."

    A fetus is not a person. And what is your feeling about cutting funding to families and children in need, yet maintaining subsidies for the oil industry?

    July 22, 2013 04:02 pm at 4:02 pm |
  18. Quixote

    Ote...your religious beliefs may say that, but mine don't. And since the Constitution specifically says citizens are persons BORN there a no constitutionally protected rights for blastocysts or embryos.

    July 22, 2013 04:03 pm at 4:03 pm |
  19. Ryan

    Having compassion on unborn babies = stone age thinking? HA!

    July 22, 2013 04:04 pm at 4:04 pm |
  20. ThinkAgain

    @red: Too many ways to prevent it from happening? Like rape and incest? Or when your health unexpectedly fails due to pregnancy?

    If you really want to reduce abortion rates, then provide free contraception to everyone, men and women.

    July 22, 2013 04:04 pm at 4:04 pm |
  21. Jack

    How about easier access to the Morning After pill? How about easier access to contraceptives? No one on the left is forcing anyone to have an abortion but those on the right want to impose their beliefs on everyone else.

    July 22, 2013 04:04 pm at 4:04 pm |
  22. Matthew Kilburn

    "Last time I checked, we already have "tens of millions of future citizens" to go around, they are in very
    abundant supply."

    Oh really? Because last time I checked, our birth rates have been cut in half in the last half century, and continue to fall. Our population continues to age, and the baby boomers enter retirement, and eventually death, saddling an ever dwindling supply of young people with higher and higher costs. Anyone who says America has plenty of children to go around is ignorant of the demographic cliff we're facing – from my experience, that ignorance is often willful.

    July 22, 2013 04:05 pm at 4:05 pm |
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