Judge puts hold on strictest abortion law to date

Physicians performing abortions in North Dakota would face criminal penalties if they violated the law, which in effect would bar abortions after six weeks.

By — Posted Aug. 5, 2013

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A federal judge in North Dakota has blocked a recently enacted abortion law that the state's medical society views as interfering with the practice of medicine.

The law, approved during North Dakota's 2013 legislative session and scheduled to take effect Aug. 1, is considered the most restrictive abortion ban in the country. It prohibits abortions if a fetal heartbeat has been detected, which usually occurs at about six weeks of gestation. According to the state's sole abortion clinic, which filed a lawsuit against the statute, the measure would prevent about 90% of the abortions performed at its facility, subsequently putting it out of business.

In a July 22 decision, Judge Daniel L. Hovland with the U.S. District Court for the District of North Dakota, Southwestern Division, granted the Red River Women's Clinic's request for a preliminary injunction against the law, calling it “invalid and unconstitutional” based on the precedents of the U.S. Supreme Court case of Roe v. Wade in 1973 and other relevant cases. “North Dakota's strict ban on abortions at the time when a 'heartbeat' has been detected — essentially banning all abortions as early as six weeks of pregnancy — cannot withstand a constitutional challenge in any court of law,” Hovland wrote.

For the past 40 years, a woman's constitutional right to end a pregnancy before a fetus becomes viable has been recognized by the high court, Hovland noted. The new language also would conflict with abortion provisions still in force in North Dakota, which bar abortions after a fetus is expected to reach viability, unless the mother's health or life is threatened.

In her declaration supporting a motion to block the new law, plaintiff Kathryn Eggleston, MD, noted that a woman often doesn't know that she's pregnant until after a heartbeat is detected or after she's been pregnant for six weeks or more. Dr. Eggleston is a board-certified family medicine physician and the Red River clinic's medical director. In light of the law's impact on women's rights, “the balance of hardships tips in the plaintiff's favor,” Hovland stated.

North Dakota Gov. Jack Dalrymple's office would not comment on the decision, saying the case is still in litigation.

Potential restraints on doctor care

The new law also restricts physicians by making it a criminal offense to perform abortions in the event of a detectable fetal heartbeat, Hovland wrote. Doctors who violate these provisions could face up to five years in prison. Their licenses could be suspended or annulled if they fail to determine the presence of a heartbeat in these situations.

Physicians in the state opposed the law on the basis that it negatively affected the physician-patient relationship, said Courtney Koebele, executive director of the North Dakota Medical Assn. “NDMA attempted to maintain a neutral position and intervened only when it appeared that the consequences of this law would have a significant impact on the patient-physician relationship and the practice of medicine in general,” she said.

Upon reviewing the language of the statute and receiving comments from its members, “it became clear to us that this law interferes with the practice of medicine,” because it limits and mandates certain medical procedures, Koebele said. She added that the judge's decision was consistent with NDMA's position on the new law.

Other states recently have approved strict abortion limitations, setting up what some legal observers predict will be a new court challenge to Roe v. Wade. A preliminary injunction recently was granted against implementation of a fetal heartbeat law in Arkansas, according to the state's Dept. of Human Services. The Arkansas Medical Society did not take a position on the issue.

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When do women have abortions?

States such as North Dakota and Arkansas have enacted laws that would limit abortions to very early stages in pregnancy, efforts that were blocked by federal judges. According to statistics released recently by the Guttmacher Institute, 88% of abortions in 2006 took place in the first 12 weeks of pregnancy.

Number of weeks Percentage of abortions
Fewer than 9 61.8%
9-10 17.1%
11-12 9.1%
13-15 6.6%
16-20 3.8%
21 or more 1.5%

Source: “Facts on Induced Abortion in the United States,” Guttmacher Institute, July (link)

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