He said one aim of the law is to challenge the Supreme Court's ruling in 'Roe v. Wade.'
abortion north dakota

(Photo: James MacPherson, AP)
Story Highlights

The bills bar abortions if a fetal heartbeat is heard
Residents will vote in 2014 on a ballot measure that defines life as starting at conception
Planned Parenthood official says governor has compromised women's health

North Dakota Gov. Jack Dalrymple signed bills Tuesday making the state's abortion laws the nation's most restrictive and setting the stage for what he called a U.S. Supreme Court challenge of "the boundaries of Roe v. Wade."

The bills bar abortions if a fetal heartbeat is heard, which can be six weeks into a pregnancy; ban abortions prompted by genetic defects; and require abortion doctors to have hospital admitting privileges. They become law Aug. 1 unless a court blocks them.

North Dakota residents will vote in 2014 on a ballot measure that defines life as starting at conception.

Paul Maloney of North Dakota Right to Life calls Tuesday "a landmark day." Sarah Stoesz of Planned Parenthood in Minnesota and the Dakotas says Dalrymple, "with one swipe of his pen ... severely compromised" women's health.

Dalrymple, a Republican, said the likelihood of the fetal heartbeat bill surviving a court challenge "remains in question" and asked the Legislature to create a legal fund.

Roe v. Wade

, a 1973 Supreme Court ruling, legalized abortion until a fetus can survive outside the womb, usually at about 24 weeks.

Donna Crane of NARAL Pro-Choice America, says the organization is concerned about the number of state bills seeking to outlaw abortion. Arkansas legislators passed a 12-week ban this month. Legislators who support such bills "are completely out of touch," she says.

Of the 425 state bills NARAL is tracking, 209 would limit abortions. In 23 states, Republican governors preside over legislatures where both chambers are controlled by the GOP.

READ: The governor's statement

Mary Spaulding Balch of National Right to Life says "pain-capable unborn child" bills that bar abortions after pain can be felt in the 20th week or earlier might be a better Supreme Court challenge because they rely on "science that wasn't available in 1973."

Ian Bartrum, a constitutional professor of law at Iowa's Drake University, says the latest laws are likely to end up in court, but he doubts they will succeed.

State Sen. Connie Triplett, a Democrat who voted against one of North Dakota's bills and walked out in protest during votes on the others, is disappointed. The measures are not "reflective of the citizens of North Dakota," she says.

Sen. Margaret Sitte, a Republican who supports the measures, says "the tide is turning" in public support for ending abortion.

North Dakota Abortion Ban
North Dakota Gov. Jack Dalrymple, delivers the State of the State Address at the Capitol in Bismarck, N.D. on Tuesday Jan. 8, 2013. (AP Photo/Will Kincaid)

BISMARCK, N.D. — North Dakota's governor positioned the oil-rich state Tuesday as a primary battleground in the decades-old fight over abortion rights, signing into law the nation's toughest restriction on the procedure and urging lawmakers to set aside cash for an inevitable legal challenge.

Minutes after Republican Gov. Jack Dalrymple signed three anti-abortion measures – one banning them when a heartbeat can be detected, which is as early as six weeks into a pregnancy – unsolicited donations began pouring into the state's lone abortion clinic to help opponents prove the new laws are unconstitutional.

"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," Dalrymple said in a statement, referring to the 1973 U.S. Supreme Court ruling that legalized abortion up to until a fetus is considered viable – usually at 22 to 24 weeks.

In an interview later Tuesday, Dalrymple told The Associated Press that the courts opened the door for a challenge by picking a specific moment in the timeline of gestation. He also said he studied the fetal heartbeat bill and "educated myself on the history and legal aspects as best I could. My conclusion is not coming from any religious belief or personal experience."

Dalrymple seemed determined to open a legal debate on the legislation, acknowledging the constitutionality of the measure was an open question. He asked the Legislature to set aside money for a "litigation fund" that would allow the state's attorney general to defend the measure against lawsuits.

He said he didn't know how much the likely court fight would cost, but he said money wasn't the issue.

"The Legislature has decided to ask these questions on additional restrictions on abortions, and I think they have the legitimate right to ask those questions," he said.

He also signed into law measures that would makes North Dakota the first state to ban abortions based on genetic defects such as Down syndrome and require a doctor who performs abortions to be a physician with hospital-admitting privileges.

Lawmakers endorsed a fourth anti-abortion bill last week that would ban abortions after 20 weeks of pregnancy based on the disputed premise that fetuses feel pain at that point. The governor stopped short of saying he would sign it, but said: "I've already signed three bills. Draw your own conclusion."

The signed measures, which take effect Aug. 1, are fueled in part by an attempt to close the Red River Women's Clinic in Fargo – the state's only abortion clinic.

Tammi Kromenaker, the clinic's director, called the legislation "extreme and unconstitutional" and said Dalrymple "awoke a sleeping giant" by approving it. The clinic, which performs about 3,000 abortions annually, was accepting cash donations and continued to take appointments Tuesday, she said.

"First and foremost, abortion is both legal and available in North Dakota," she said. "But anytime abortion laws are in the news, women are worried about access."

The Center for Reproductive Rights announced Tuesday that it has committed to challenging the fetal heartbeat bill on behalf of the clinic. The New York-based group already represented the clinic for free in a lawsuit over a 2011 law banning the widely accepted use of a medication that induces abortion. A judge has temporarily blocked enforcement of the law, and a trial is slated for April in Fargo.

Attorney General Wayne Stenehjem told the AP that lawyers from his office would defend any lawsuits that arise but an increase to the agency's budget would likely be necessary. He did not have a dollar amount.

The state has spent about $23,000 in legal costs to date defending the 2011 legislation, according to agency records obtained by the AP.

Julie Rikelman, litigation director for the Center for Reproductive Rights, said the group has provided three attorneys to argue that case. But in the recent round of legislation, the fetal heartbeat measure is the priority because it would effectively ban abortion in the state, she said.

"The impact is very, very clear," she said. "It would have an immediate and very large impact on the women in North Dakota."

Rikelman said the center also would support the clinic in other litigation, if need be and at no cost.

Kromenaker said other states have spent millions of dollars defending legislation, if the case reaches the nation's highest court. Rikelman said it's impossible to put a dollar amount on the impending legal fight in North Dakota.

"Litigation is so unpredictable," she said. "It could be very quick with a ruling in our favor."

North Dakota's law, since it would ban most abortions as early as six weeks into a pregnancy, goes further than a bill approved earlier this month in Arkansas that establishes a 12-week ban – prohibiting them when a fetal heartbeat can be detected using an abdominal ultrasound. That ban is scheduled to take effect 90 days after the Arkansas Legislature adjourns.

A fetal heartbeat can generally be detected earlier in a pregnancy using a vaginal ultrasound, but Arkansas lawmakers balked at requiring women seeking abortions to have the more invasive imaging technique.

North Dakota's legislation doesn't specify how a fetal heartbeat would be detected.

Doctors performing an abortion after a heartbeat is detected could face a felony charge punishable by up to five years in prison and a $5,000 fine. Women having an abortion would not face charges.

The legislation to ban abortions based on genetic defects also would ban abortion based on gender selection. The Guttmacher Institute, which tracks abortion laws throughout the country, says Pennsylvania, Arizona and Oklahoma also have laws outlawing abortion based on gender selection.

The Republican-led North Dakota Legislature has endorsed a spate of anti-abortion Legislation this year. North Dakota lawmakers moved last week to outlaw abortion in the state by passing a resolution defining life as starting at conception, essentially banning abortion in the state. The measure is likely to come before voters in November 2014.

Dalrymple attended a groundbreaking ceremony Tuesday for a new diesel refinery in western North Dakota and made no public appearance to explain his signing of the abortion legislation.

FARGO, N.D. — Gov. Jack Dalrymple of North Dakota approved the nation’s toughest abortion restrictions on Tuesday, signing into law a measure that would ban nearly all abortions and inviting a legal showdown over just how much states can limit access to the procedure.
Multimedia
Graphic
States Chipping Away at Roe v. Wade
National Twitter Logo.
Connect With Us on Twitter

Follow @NYTNational for breaking news and headlines.

Twitter List: Reporters and Editors
Enlarge This Image
Dan Koeck for The New York Times

Tammi Kromenaker runs the state’s only abortion provider.
Enlarge This Image
Dale Wetzel/Associated Press

Gov. Jack Dalrymple signed the laws Tuesday.
Readers’ Comments

Share your thoughts.

Post a Comment »
Read All Comments (464) »

Mr. Dalrymple, a Republican, signed three bills passed by the Republican-controlled Legislature in Bismarck. The most far-reaching law forbids abortion once a fetal heartbeat is “detectable,” which can be as early as six weeks into a pregnancy. Fetal heartbeats are detectable at that stage of pregnancy using a transvaginal ultrasound.

Most legal scholars have said the law would violate the Supreme Court’s finding in Roe v. Wade that abortions were permitted until the fetus was viable outside the womb, generally around 24 weeks. Even some leaders of the anti-abortion movement nationally have predicted that laws banning abortion so early in pregnancy are virtually certain to be declared unconstitutional by federal courts.

“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,” Mr. Dalrymple said in a statement. The Supreme Court, he added, “has never considered this precise restriction” in the heartbeat bill.

“I think there’s a lot of frustration in the pro-life movement,” said Paul B. Linton, a constitutional lawyer in Illinois who was formerly general counsel of Americans United for Life. “Forty years after Roe v. Wade was decided, it’s still the law of the land.”

The new laws place North Dakota, for the moment at least, at the center of sharp efforts in several Republican-controlled states to curb abortion rights. Three weeks ago, Arkansas lawmakers adopted what at the time was the country’s most stringent abortion limit, also tied to detection of a fetal heartbeat and banning the procedure at 12 weeks of pregnancy. That is the point at which a heartbeat can be detected using an abdominal ultrasound.

The Arkansas and North Dakota laws have offered the first victories for an emerging faction of the anti-abortion movement that is frustrated by the limited progress in curbing abortions and hopes that the Supreme Court might be ready for a radical rethinking.

But that approach has caused divisions within the movement, with Mr. Linton and others calling it wishful thinking

The North Dakota fetal heartbeat law and others like it, Mr. Linton said, “have no chance in the courts.”

Abortion-rights advocates who had gathered here to urge the governor to veto the bills quickly condemned his decision as effectively banning abortion in the state and as an attack on women. Without judicial intervention, the three bills are scheduled to take effect Aug. 1.

“In the past it’s been, ‘We’re going to try and make it more difficult, more hoops, more obstacles for women to have to jump through or jump over,’ ” said Tammi Kromenaker, the director of Red River Women’s Clinic in Fargo, the state’s only abortion provider. “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.’ ”

The Center for Reproductive Rights, in New York, immediately condemned the new laws and said it would file a challenge to the fetal heartbeat ban.

Mr. Dalrymple also affirmed a law to require doctors performing abortions to get admitting privileges at a local hospital, which could force the closing of the Red River clinic. A similar law adopted by Mississippi last year is under challenge in federal court.

He also signed a third law that would prevent abortion in cases of gender preference or — the first of its kind in the nation — genetic defects, like Down syndrome.

The signings come on top of a resolution approved by the North Dakota Legislature last week to amend the State Constitution to assert that life begins at conception, a move that would give a fetus the rights of a person and outlaw virtually all abortions. The so-called personhood measure, asserting that “the inalienable right to life of every human being at any stage of development must be recognized and defended,” will go on the ballot next year. Such measures have been voted down in Mississippi and Colorado.

Mr. Dalrymple acted on the measures less than 24 hours after they were advanced to his desk.

Similar measures to ban abortions when fetal heartbeats are detected are under consideration in several other states, including Kansas and Ohio.

The larger, established opponents of abortion including the National Right to Life, Americans United for Life and the Roman Catholic Church have not supported fetal heartbeat proposals, saying that until the court’s composition changes, they could be counterproductive.

These groups have instead pursued more incremental measures, like waiting periods, requiring sonograms, and imposing stricter regulations on doctors and clinics and, in 10 states so far, bans on abortion at 20 weeks, an approach that is nearer to the viability threshold, but is under challenge in the courts.

“There are two clashing forces in the anti-abortion movement now,” said Caitlin Borgmann, a law professor and abortion-rights advocate at City University of New York. “The incrementalists are chipping away at Roe and the others are getting impatient.”

With passage of heartbeat laws in Arkansas and North Dakota, “this extreme wing of the movement has definitely gained momentum,” Ms. Borgmann said. “But it can only go so far because they can’t win in the courts.”

Abortion-rights advocates here have felt particularly on the defensive this year because of the sheer number of bills introduced and their sweeping scope.

Previously approved abortion measures requiring the state’s lone provider to do things like post new signs, fill out more paperwork, distribute literature and offer ultrasounds were seen as burdensome but manageable.

Some say that North Dakota lawmakers and activists opposed to abortion aggressively pushed their cause this year because they were emboldened by the huge cash reserves from oil revenue that the state can use to fight legal challenges to its laws, and by the successful passage of abortion restrictions elsewhere in the country.

In signing the measure the governor asked the Legislature to appropriate money to pay to defend a court challenge.

“Nationwide, there’s receptiveness to this,” said Paul Maloney, the executive director of North Dakota Right to Life. “People of North Dakota thought, ‘We have the kind of legislative body that would pass these kinds of pieces of legislation.’ ”

Fetal heartbeats are generally detectable six weeks into pregnancy using a transvaginal ultrasound, and at 10 to 12 weeks with abdominal ultrasounds. Doctors could face five years in prison if they knowingly violate this measure, and Ms. Kromenaker said physicians would feel compelled to perform transvaginal ultrasounds to stay in compliance.

State Representative Bette Grande, a Republican who was the primary sponsor of the heartbeat bill, praised the governor’s decision.

“This is just a great day for babies in North Dakota,” she said, expressing confidence that it would withstand the court challenges.

“The state has a compelling duty to find what is the potential life of a fetus,” she said. “What is more compelling and proof of life than a heartbeat? It meets the criteria of Roe v. Wade.”

The admitting privileges law will probably lead the Red River clinic to shut down, Ms. Kromenaker said, because there are only two hospitals within the required radius, and she was uncertain whether her doctors would be allowed privileges there. One of the hospitals requires a doctor to admit at least 10 patients per year, she said, a standard that her doctors, who fly in from out of state to perform the procedures, would be unable to meet.

John Eligon reported from Fargo, and Erik Eckholm from New York.