Judge Declares North Dakota’s Ban on Abortion When Heartbeat Detected ‘Unconstitutional’

ultrasoundBISMARCK, N.D. — A federal judge nominated by George W. Bush has overturned a North Dakota law that banned abortions when a heartbeat is detected, declaring the restriction ‘unconstitutional.’

As previously reported, lawmakers in the state passed HB 1456 in March 2013, which was later signed by Governor Jack Dalrymple. It would require any abortionist in the state to check for a fetal heartbeat, which some note can be detected by medical equipment as early as 12 weeks. However, fetal development experts state that an infant’s heart begins beating just 20-25 days after conception.

If the abortionist performs the abortion despite the existence of a heartbeat, he or she would face felony charges, and could spend up to five years in prison and/or pay up to $5,000 in fines.

“The images and heartbeat from the womb provide strong and overwhelming evidence of — at the very least — potential life,” said Sen. Spencer Berry (R-Fargo), a sponsor of the bill. “And we have been instructed by the Supreme Court to protect that very potential.”

However, federal District Judge Daniel Hovland, nominated by George W. Bush in 2002, disagreed. In issuing a temporary injunction against the new law last July—as per the request of New York’s Center for Reproductive Rights, which represented the Red River Women’s Clinic in Fargo—Hovland pointed to the 1973 decision of Roe v. Wade.

“The state has extended an invitation to an expensive court battle over a law restricting abortions that is a blatant violation of the constitutional guarantees afforded to all women,” he wrote in his 22-page decision.

On Wednesday, Hovland issued a permanent injunction against the legislation, officially declaring the law to be “invalid and unconstitutional.”

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“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,” he wrote. “The controversy over a woman’s right to choose to have an abortion will never end. The issue is undoubtedly one of the most divisive of social issues. The United States Supreme Court will eventually weigh in on this emotionally-fraught issue but, until that occurs, this Court is obligated to uphold existing Supreme Court precedent.”

Lawmakers had stated prior to the passage of the statute that the legislation served as a challenge to Roe v. Wade.

“We don’t stop beating hearts in our society,” declared Rep. Bette Grande (R-Fargo). “We do everything to save the beating heart. The life is that beating heart. It doesn’t matter if we have one clinic in North Dakota or 50 clinics in North Dakota.”

Gov. Jack Dalrymple likewise acknowledged the likelihood of resistance to the measure, but stated that it was “nevertheless a legitimate attempt by a state legislature to discover the boundaries of Roe.”

Attorney General Wayne Stenehjem told reporters following Wednesday’s decision that he is considering whether or not to appeal.

“[W]e’ll have to decide what course we want to take from here,” he said.

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