March 27, 2013 — North Dakota Gov. Jack Dalrymple (R) on Tuesday approved the nation's most-restrictive abortion ban by signing into law a bill (HB 1456) that prohibits the procedure once a fetal heartbeat is "detectable," which can occur as early as six weeks if a transvaginal ultrasound is used, the New York Times reports. Combined with two other antiabortion-rights bills the governor signed on Tuesday, the measure places North Dakota on course for court battles with abortion-rights supporters.
In a statement, Dalrymple said, "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." According to most legal scholars, the six-week ban directly conflicts with the landmark ruling, which established that states cannot ban abortions before a fetus is considered viable, usually about 24 weeks (Eligon/Eckholm, New York Times, 3/26).
HB 1456 does not specify how a fetal heartbeat must be detected. Physicians who violate the measure could be charged with a felony, punishable by up to five years in prison and a $5,000 fine (MacPherson, AP/Sacramento Bee, 3/26).
Other Antiabortion Measures
Dalrymple also signed a bill (SB 2305) that would require physicians who perform abortions to have admitting privileges at a nearby hospital. The requirement could force the state's sole abortion clinic to close, according to the Times.
The governor also approved a bill (HB 1305) that makes North Dakota the first state to prohibit abortions when the fetus has genetic defects, such as Down syndrome. The bill also bans abortions sought because of the sex of the fetus (New York Times, 3/26).
Dalrymple said that the hospital-admitting privileges requirement "greatly increases the chances that this measure will face a court challenge," adding, "Nevertheless, it is a legitimate and new question for the courts regarding a precise restriction on doctors who perform abortions" (Blake, "Post Politics," Washington Post, 2/26).
Ensuing Court Challenge
The Center for Reproductive Rights pledged to challenge the six-week ban to prevent it from taking effect on Aug. 1. "North Dakota has set a new standard for extreme hostility toward the rights and health of women," CRR President Nancy Northup said (Peters, Wall Street Journal, 3/26).
Politico reports that the North Dakota six-week abortion ban is the latest of states' attempts to set increasingly earlier limits on abortion -- a strategy some abortion-rights opponents see as their best chance for directly challenging the viability standard set in Roe.
In the last few years, several states have passed laws banning abortion after 20 weeks, based on the disputed theory that fetuses can feel pain at that point. A court recently struck down Idaho's 20-week ban, while similar measures are on hold in Arizona and Georgia because of court challenges. This year, Arkansas enacted a 12-week ban, and six-week measures have been proposed in Kansas, Kentucky, Mississippi and Wyoming (Smith, Politico, 3/26). Meanwhile, North Dakota lawmakers recently sent Dalrymple a 20-week bill, which awaits his signature (AP/Sacramento Bee, 3/26).
Northup said the pre-viability bans "are without question, unconstitutional" (Politico, 3/26).
In acknowledging the likelihood of a court battle, Dalrymple on Tuesday asked the state to set aside money for a "litigation fund" that would allow the state's attorney general to defend the six-week measure. Meanwhile, the Red River Women's Clinic in Fargo -- the state's only clinic -- received an infusion of unsolicited donations to help fight the laws (AP/Sacramento Bee, 3/26).