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U.S. Supreme Court refuses to review N.D.’s fetal heartbeat abortion ban

BISMARCK, North Dakota – The U.S. Supreme Court on Monday refused to review a stricken-down North Dakota law that would have banned abortion if the fetus has a detectable heartbeat, which is at about six weeks of pregnancy.

Attorney General Wayne Stenehjem said he knew the chances of the high court hearing the case were diminished after justices last week refused to review Arkansas’ ban on abortion at 12 weeks of pregnancy, after previously declining to review Arizona’s 20-week abortion ban.

“We knew just going in it was going to be a long shot,” he said, adding, “This is the end of what we can do.”

U.S. District Court Judge Daniel Hovland declared North Dakota’s 2013 law unconstitutional and permanently blocked it in April 2014 after it was challenged by New York-based Center for Reproductive Rights and Bismarck attorney Thomas Dickson on behalf of the Red River Women’s Clinic in Fargo, the state’s lone abortion provider.

A federal appeals court upheld Hovland’s ruling in July, and Stenehjem petitioned the Supreme Court in November to review the law.

Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement, “This utterly cruel and unconstitutional ban would have made North Dakota the first state since Roe v. Wade to effectively ban abortion -- with countless women left to pay the price.”

The six-week ban was one of three anti-abortion bills that Republican Gov. Jack Dalrymple signed into law in March 2013, at the time calling them “a legitimate attempt by a state legislature to discover the boundaries of Roe V. Wade,” the landmark 1973 U.S. Supreme Court decision that ruled states can’t ban abortion prior to viability, or about 24 weeks.

The Republican-controlled Legislature passed and Dalrymple signed four abortion-related laws in all that session. The only one not to face a legal challenge was a ban on abortion after more than 20 weeks into the pregnancy, because the Fargo clinic only performs abortions up to 16 weeks of pregnancy.

The attorney general’s office has spent more than $320,000 on abortion-related litigation since February 2012, including about $240,000 defending the fetal heartbeat abortion law in federal court, Stenehjem said.

Stenehjem, who is running for governor, noted that Ron Fischer, a special assistant attorney general, agreed to draft the Supreme Court petition pro bono, so the only cost to the state was the out-of-pocket expenses of $5,975, mostly for printing costs. He said the lawyer fees would have been about $40,000.

Former state representative Bette Grande of Fargo, the Republican who introduced the six-week ban in 2013, said she wasn’t surprised by Monday’s Supreme Court decision and believes the cost of defending the law was “absolutely worth it.”

“It has given so much to the mothers and the people to know what is in the womb. It’s to help make the proper decisions for life,” she said.

Grande echoed the sentiment of the U.S. Eighth Circuit Court of Appeal’s three-judge panel that upheld Hovland’s ruling when they wrote that “good reasons exist for the (Supreme Court) to reevaluate its jurisprudence,” and that medical and scientific advances show the concept of viability is subject to change.

“We’ve had such advances in technology and medicine, there comes a time we have to truly look at what is in the womb,” Grande said.

Grande lost in the November 2014 election, when 64 percent of voters also rejected a ballot measure that would have amended the state constitution to read that “The inalienable right to life of every human being at any stage of development must be recognized and protected.”

North Dakota Women’s Network Executive Director Renee Stromme applauded the Supreme Court’s decision not to review what she called one of the most extreme abortion bans in the nation.

“The Legislature clearly and knowingly overstepped their bounds,” she said in statement. “We are glad the Supreme Court rejects the political attempts to infringe on women’s private medical rights and reproductive health. With this matter settled, we now have the opportunity and responsibility for the state to focus on the issues that truly improve the lives of women and children.”

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