- The Washington Times - Wednesday, July 22, 2015

The nation’s first law to ban most abortions as soon as a fetal heartbeat is heard — around six weeks of pregnancy — lost in court again Wednesday.

Because Supreme Court precedent “does not permit us to reach a contrary result, we affirm,” said a three-judge panel of the 8th U.S. Circuit Court of Appeals, upholding a lower court ruling striking down the 2013 law.

Defenders of North Dakota’s lone abortion clinic cheered the ruling.

“No woman should ever have to fear her constitutional rights [to abortion] could disappear overnight by virtue of where she lives,” said Nancy Northup, president and chief executive of the Center for Reproductive Rights, which represented Red River Women’s Clinic in Fargo and Dr. Kathryn L. Eggleston.

The 8th Circuit’s decision “reaffirms that the U.S. Constitution protects women from the legislative attacks of politicians who would deny them their right to safely and legally end a pregnancy,” Ms. Northup said.

The ruling, however, went far beyond upholding current Supreme Court precedent on abortion: It said there are “good reasons for the Court to reevaluate its jurisprudence” on abortion, particularly its “viability standard,” which the panel of judges said “will prove even less workable in the future.”

The three judges noted that the Supreme Court has tied viability to “developments in obstetrics, not to developments in the unborn.”

As a result, they wrote, a 24-week-old fetus in the 1970s would have been deemed nonviable, but infants today — like Amillia Taylor, who was born at 21 weeks gestation — are surviving at much earlier ages.

The appellate court didn’t accept Dr. Jerry Obritsch’s argument that children conceived through in-vitro fertilization (IVF) live outside the womb for a few days, thus making viability at conception a reality. Neither the Supreme Court nor the medical community use such a definition of viability, wrote 8th Circuit Judges Bobby E. Shepherd, Lavenski R. Smith and William Duane Benton.

However, “as IVF and similar technologies improve, we can reasonably expect the amount of time an ‘embryonic unborn child’ may survive outside the womb will only increase,” they wrote.

The judges also noted that other “underlying” facts of Roe v. Wade “may have changed.” Both Norma McCorvey, the woman in Roe, and Sandra Cano, the woman in Doe v. Bolton, oppose the rulings made in their names. Also, Roe’s assumptions that women would always make abortion decisions “in close consultation” with their doctors, or that women would not suffer ill effects post-abortion, have not held up over time, according to testimonies to the court.

“In short, the continued application of the Supreme Court’s viability standard discounts the legislative branch’s recognized interest in protecting unborn children,” the judges said.

North Dakota Attorney General Wayne Stenehjem said Wednesday his office was reviewing the decision. After that, “we will make a determination of what further action, if any, is advisable,” he said, according to the Grand Forks Herald.

North Dakota Gov. Jack Dalrymple, who signed the 2013 law, was traveling and unavailable to comment on Wednesday, his spokesman said.

North Dakota’s first-in-the-nation “fetal heartbeat” law passed with bipartisan support and represented “the will of the people,” pro-life advocate Janne Myrdal said last year.

The law — which has never gone into effect due to court rulings — bans abortions, except in cases of medical emergency, once a fetal heartbeat is detected. Doctors who violate the law face felony charges and license revocation.

“Though we are obviously disappointed by the ultimate outcome of the case, the Eighth Circuit gave us a thoughtful decision that outlines the many impervious, unwise and plainly unscientific aspects of the Supreme Court’s abortion jurisprudence,” said Penny Nance, president and chief executive of Concerned Women for America (CWA).

“We are encouraged by the court’s careful approach at this difficult issue,” Ms. Nance said.

“You know we have a problem in our country on this issue when courts are required to follow the Supreme Court’s definition of “viability” ignoring many medical professionals and clear scientific advances.  The Eighth Circuit itself recognizes that ‘the [Supreme] Court’s viability standard has proven unsatisfactory’,” said Ms. Myrdal, state director for CWA of North Dakota.

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

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