Dropping the Pretext: North Dakota Takes a Frontal Attack on Roe v. Wade

Last March, North Dakota enacted a blatantly unconstitutional and downright archaic law completely banning abortions very early in the first trimester, before many women will even know they are pregnant.
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Last March, North Dakota enacted a blatantly unconstitutional and downright archaic law completely banning abortions very early in the first trimester, before many women will even know they are pregnant.

This criminal abortion ban flies directly in the face of women's fundamental and constitutionally-protected right to control their bodies and reproductive health. Since the U.S. Supreme Court decided Roe v. Wade, hostile state politicians have continually chipped away at the rights afforded by that decision by enacting restrictions that limit women's access to abortion. But with this absolute ban, North Dakota is not just chipping away. It's grabbing a sledgehammer.

North Dakota's law bans abortion as early as just six weeks of pregnancy and makes felons of doctors who perform abortions after that point. But as the U.S. Court of Appeals for the Ninth Circuit recently stated, a law banning abortions prior to being viable outside the woman's uterus is "unconstitutional under an unbroken stream of Supreme Court authority, beginning with Roe and ending with Gonzales [v. Carhart]."

So why is North Dakota doing this? The answer lies within the public statements of North Dakota politicians. Legislators supporting the new law brazenly admitted that their true goal was to ban abortion entirely, with many at the same time acknowledging the law would stand little chance in the courts. Even when Governor Jack Dalrymple signed the bill into law, he stated openly that it was likely unconstitutional, but opined that the State should be allowed to challenge Roe. To finance this nakedly political project, North Dakota set aside nearly half a million dollars in 2013 for the legal defense of its six-week ban and several other unconstitutional anti-choice bills.

Immediately, the Center for Reproductive Rights challenged the law in federal court on behalf of the state's only abortion clinic and its medical director. And before the law could even take effect, the court preliminarily enjoined the measure, stating: "As a practical matter, H.B. 1456 would ban nearly 90 percent of all abortions performed at the only clinic in North Dakota which provides such services, in direct contradiction to United States Supreme Court precedent. The North Dakota strict ban on abortions at the time when a 'heartbeat' has been detected -- essentially banning all abortions as early as six weeks of pregnancy -- cannot withstand a constitutional challenge in any court of law."

The clinic has since obtained a permanent injunction, and in mid-May, the State filed an appeal. Throughout, the State's defense has taken the same extremist tack that the state legislature took in passing it. In filings the State itself describes as "mountains" of paper, North Dakota's attorney general has employed absurd claims, such as asserting an embryo can live outside a woman's body "from the time of conception" and that without this abortion ban, the state's economy would be adversely impacted due to the loss of potential North Dakotans who would have contributed to state's future workforce.

Similar tactics have been soundly rejected by other courts when looking at pre-viability bans in Arizona and Arkansas. Last May, the Ninth Circuit Court of Appeals struck down Arizona's law banning abortion at 20 weeks, because it was "per se unconstitutional," with the U.S. Supreme Court following suit when it denied certiorari this January. And in March, a federal district court permanently enjoined Arkansas's 12-week abortion ban because the law infringes upon "a woman's constitutional right to elect to have an abortion before viability."

These laws, and the tactics to defend them, display an utter disrespect for women's lives and health, the Constitution, and the courts. States like North Dakota wish to substitute politicians' judgment with that of women based on invented claims that abortion harms women's health. When the reality is, women are at far greater risk when they are denied access to safe and legal abortion. Two decades after Roe, Justice O'Connor explained: "The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives ...."

This remains true now, 22 years later, and will still be true two decades from now. Women should not have to go to court, year after year in state after state, to reaffirm their constitutional right to reproductive freedom. This must stop.

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