Both Sides Brace for Prospect That State Abortion Bans Could Reach Supreme Court

April 22, 2013 —Lawmakers and experts on both sides of the abortion-rights debate say potential lawsuits over state measures banning abortion before fetal viability could eventually make it to the Supreme Court, Bloomberg Businessweek reports.

In particular, observers are focused on a recent North Dakota law (HB 1456) banning most abortions as early as six weeks of pregnancy (Deprez, Bloomberg Businessweek, 4/18).

The new law -- signed by Gov. Jack Dalrymple (R) last month and set to take effect Aug. 1 -- prohibits abortions once a fetal heartbeat is "detectable," which can occur as early as six weeks if a transvaginal ultrasound is used.

Dalrymple has acknowledged the likelihood that the measure will be challenged in court and urged lawmakers to create a $400,000 litigation fund to defend against potential legal challenges to it and other recently enacted abortion restrictions (Women's Health Policy Report, 4/11).

The Center for Reproductive Rights has said it plans to file a lawsuit to try to block the six-week ban before it takes effect.

Dalrymple also has suggested that the bill is part of an effort to force a challenge to Supreme Court precedent declaring that it is unconstitutional for states to ban abortions before viability. Upon signing the six-week ban, Dalrymple remarked that it is "a legitimate attempt by a state legislature to discover the boundaries of Roe v. Wade."

According to the Guttmacher Institute, 13 other state legislatures in the first three months of 2013 introduced measures that conflict with the 1973 ruling. Julie Nice, a constitutional law professor at the University of San Francisco School of Law, said that it will be "increasingly difficult for the Supreme Court to ignore" the issue.

However, Mathew Staver -- founder of Liberty Counsel, a Christian organization that specializes in defending abortion restrictions -- said the Roe decision is vulnerable because recent medical advances have changed the point of viability (Bloomberg Businessweek, 4/18).