- The Washington Times - Wednesday, April 16, 2014

The nation’s first law to ban most abortions as soon as a fetal heartbeat can be heard — possibly six weeks into the pregnancy — has been overturned by a federal judge.

The law is “invalid and unconstitutional” and “in direct contradiction” of Supreme Court case law, U.S. District Judge Daniel L. Hovland in Bismarck, N.D., ruled Wednesday. The judge used similar language last summer to block the law from going into effect.

North Dakota Attorney General Wayne Stenehjem didn’t immediately say whether the state would appeal the ruling.

The first-of-its-kind law would have banned abortions, except in cases of medical emergency, once a fetal heartbeat was detected. This could occur as early as 22 days into pregnancy or six weeks after a woman’s last menstrual period. Violators would have faced felony charges and revocation of their physician’s licenses, the ruling said.

Pro-choice advocates vigorously opposed the 2013 law because it could deny abortions to a woman who didn’t quickly realize she was pregnant, and because it violated Supreme Court rulings prohibiting states from interfering with women’s access to abortion before their fetuses are viable. Fetal viability is generally deemed to be 22 weeks gestation.

“The court was correct to call this law exactly what it is: a blatant violation of the constitutional guarantees afforded to all women,” said Nancy Northup, president and chief executive of the Center for Reproductive Rights, which represented the state’s sole abortion clinic, Red River Women’s Clinic in Fargo, and Dr. Kathryn Eggleston, in the case.

“Today’s decision by Judge Hovland is not a surprise — but we are certainly greatly relieved to have the decision,” said Tammi Kromenaker, director of the clinic. “We hope that the legislators in North Dakota who pushed for these unconstitutional bans will realize that the women of our state will not be pawns in their ideological agenda.”

State officials, including Cass County State’s Attorney Birch Burdick, argued that the law was constitutional because abortions were permitted up to the time when a fetal heartbeat was detected.

The state has an interest in “protecting the life of the unborn, protecting the physical and mental health of women who may seek to procure an abortion, preserving the integrity of the medical profession, preventing the coarsening of society’s moral sense and promoting respect for human life,” the ruling said in its summary of the arguments.

But a state’s interest “cannot unduly burden a woman’s right to choose abortion” and this law “cannot withstand a constitutional challenge,” Judge Hovland concluded.

The judge also rejected the state’s novel argument that viability should now be defined as from the time of conception.

Human embryos are already created and can live outside the womb for several days before being transferred back into a womb “to continue” gestation. This means “an unborn child is viable … from the time of conception,” state witness Dr. Jerry M. Obritsch told the court.

Judge Hovland dismissed that viewpoint, saying it clearly conflicted with “binding precedent” from the Supreme Court.

Janne Myrdal, state director of Concerned Women for America in North Dakota, said she hoped state officials would defend the law, which was passed with bipartisan support and “is the will of the people.”

“Science has jumped leaps and bounds in 40 years” since the Roe v. Wade decision, “and in North Dakota, we are just catching up to science with this heartbeat law,” said Ms. Myrdal. “We’re saying, at the very least, can we reach an agreement … that if there’s a detectable heartbeat, let’s put a door stopper right there,” and protect that life, she said.

Numerous states — including North Dakota — have passed laws banning most abortions after 20 weeks gestation, arguing that fetuses can feel pain at that point. An Arkansas law — also overturned in federal court — would have blocked abortions after 12 weeks if a fetal heartbeat could be heard. Arkansas officials are appealing that ruling to the 8th U.S. Circuit Court of Appeals.

• Cheryl Wetzstein can be reached at cwetzstein@washingtontimes.com.

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