North Dakota passes restrictive abortion laws that may reach the Supreme Court

BMJ 2013; 346 doi: (Published 04 April 2013) Cite this as: BMJ 2013;346:f2096
  1. Janice Hopkins Tanne
  1. 1New York

The North Dakota state legislature has passed three bills limiting abortions, which are the most restrictive abortion laws in the United States. One of them bans abortion from the moment that a heartbeat can be detected. Governor Jack Dalrymple signed them, almost certainly setting off lawsuits that will end up in the Supreme Court.

The legislature also approved a “personhood” amendment to the state constitution that will appear on ballots next year. It says, “The inalienable right to life of every human being at any stage of development must be recognized and protected.”

Personhood amendments have been put to voters in previous elections in several states and rejected. They are based on the idea that life begins at conception, defined as the union of sperm and egg. That would outlaw all abortions. The American College of Obstetricians and Gynecologists says pregnancy begins when a fertilized egg implants in the uterus.1

Unless there are legal challenges the laws will take effect on 1 August 2013.

North Dakota is now a leader among several Republican controlled states that are limiting abortion rights. Three weeks ago Arkansas legislators banned abortions after 12 weeks of pregnancy and other states are considering similar limits.

The North Dakota laws ban abortions when a fetal heartbeat can be detected by vaginal ultrasound, usually at about six weeks. The law requires a physician to determine whether there is a fetal heartbeat before performing an abortion.

Another bill bans abortions based on sex or genetic abnormalities. A third bill requires physicians performing abortions to be licensed in the state and to have admitting privileges at a local hospital, which may be difficult given the state’s conservative political climate.

Governor Dalrymple acknowledged that the bills were a challenge to the 1973 Roe v Wade decision by the US Supreme Court, which said that abortions can be performed before the fetus is viable outside the womb, usually at about 24 weeks.

“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. The constitutionality of this measure is an open question,” the governor said, according to the Bismarck Tribune, a regional newspaper.2

Few anti-abortion organizations spoke in favor of the legislation, perhaps because they feel it will be overturned in the courts.

Representative Kathy Hawken of Fargo, one of the few Republicans who voted against the bill, told the Bismarck Tribune, “I’m devastated . . . We’ve taken what is federally protected as a legal procedure and we’re making it illegal.” She said she hoped the bills would be overturned in court. She also said it was unfortunate that the state would face an expensive legal battle when the money might have been better spent on childcare or education.

The Center for Reproductive Rights in New York said it would challenge the law in court before it went into effect. Nancy Northup, the center’s director, said, “North Dakota has set a new standard for extreme hostility toward the rights and health of women, the US Constitution, and 40 years of Supreme Court precedent.

“Governor Dalrymple and anti-choice politicians in North Dakota have relegated the women in their state to a second class of citizens today whose constitutional rights are lesser than those of other states where women’s rights are protected and guaranteed.”3

Northup said the aim of the legislation was to shut down North Dakota’s only abortion provider, the Red River Women’s Clinic in Fargo. The clinic’s director, Tammi Kromenaker, told the New York Times that previous attempts to limit abortion had been to place more obstacles in a woman’s way. “But this is specifically: Let’s ban abortion. Let’s do it. Let’s challenge Roe v Wade. Let’s end abortion in North Dakota.”4

Cecile Richards, president of Planned Parenthood, told the Washington Post that “We have been organizing our seven million supporters . . . In North Dakota you even have Republicans and doctors speaking about the extreme nature of the legislation . . . assume something will [go to the Supreme Court]. I hope the Supreme Court will honor judicial precedent, that this is a right women and men have had for 40 years and won’t let it [be taken] away.5


Cite this as: BMJ 2013;346:f2096