Judge rules North Dakota's ban on abortions after 6 weeks unconstitutional

North Dakota’s law banning abortions after 6 weeks of pregnancy is unconstitutional, a federal judge ruled Wednesday, striking down what critics had called the nation’s most extreme limit on the procedure.

The law, which was approved last year but never took effect, made it a crime for a woman to abort a fetus with a detectable heartbeat. Offending doctors faced up to five years in prison. An exception was allowed for medical emergencies.

U.S. District Judge Daniel Hovland said the law was “in direct contradiction” of the Supreme Court’s 40-year-old decision in Roe vs. Wade, which established “viability” as the critical point at which states could begin restricting abortions. North Dakota and several other states already ban abortions when a fetus is considered viable, typically at about 4 months.  

“The United States Supreme Court has spoken and has unequivocally said no state may deprive a woman of the choice to terminate her pregnancy at a point prior to viability,” Hovland wrote.

He said while the “emotionally fraught” controversy over a woman’s right to choose would continue, courts are obligated to uphold the existing precedent until the U.S. Supreme Court weighs in again.

An Arizona measure that sought to ban abortions starting at 20 weeks and an Arkansas ban of abortions after about 12 weeks were also struck down recently by federal judges.  The Arkansas and North Dakota measures were the strictest measures passed in 2013, the National Women’s Law Center said.

The challenge to the North Dakota law was brought by the state’s only abortion clinic, Red River Women’s Clinic in Fargo, with the help of the Center for Reproductive Rights in New York City.

Nancy Northup, the center’s president and chief executive, celebrated the decision and admonished lawmakers.

“Women should not be forced to go to court, year after year in state after state, to protect their constitutional rights,” she said in a statement. “We hope today’s decision, along with the long line of decisions striking down these attempts to choke off access to safe and legal abortion services in the U.S., sends a strong message to politicians across the country that our rights cannot be legislated away.”

North Dakota Atty. Gen. Wayne Stenehjem said he would review the decision before deciding whether to appeal Wednesday’s ruling. He has a month to do so.

“I will be meeting with the appropriate state officials about the case before making such a decision,” he said in a statement. “ In making the decision, I will take into account the Attorney General’s duty to defend the constitutionality of any enactment of the Legislative Assembly.”

In court filings, the state admitted that it was trying to ban all abortions. A physician speaking for the state argued that viability was reached at the point of conception.

Hovland acknowledged that viability was a flexible point to be determined by doctors. Although medical advances mean viability can be earlier than it used to be, he said that he was in no position to accept the state expert’s “giant leap."

“To take the position that viability occurs at the moment of conception results in a complete ban of all abortions which is in clear defiance of United States Supreme Court precedent,” Hovland wrote.

The clinic argued that most women don’t realize they are pregnant for about a month, leaving them a week to seek an abortion. About 91% of the abortions it performs are at and after six weeks, the clinic told government regulators. And the clinic typically performs abortions only one day per week, making the time constraint an undue burden on women.

“The state can impose regulations aimed at ensuring a thoughtful and informed choice, but only if such regulations do not unduly burden the right to choose,” the judge wrote in agreement.

The North Dakota Supreme Court is still weighing a challenge from the same plaintiffs about legislation that bans medicated abortions.

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