Why new law makes North Dakota most anti-abortion state

Jack Dalrymple, the Republican governor of North Dakota, signed into law Tuesday the most far-reaching restriction on abortion by any state in the country. It bans abortion as soon as a fetal heartbeat is detectable, which in some cases is as early as six weeks of gestation.

Legal scholars say the law is likely to be found unconstitutional in federal court, in light of the Supreme Court’s Roe v. Wade ruling of 1973. Under Roe, abortion is legal until the fetus is viable outside the womb, usually at 22 to 24 weeks.  

In a statement, Governor Dalrymple himself questioned whether the measure would survive a court challenge. But, he continued, “this bill is nevertheless a legitimate attempt by a state legislature to discover the boundaries of Roe v. Wade.”

With its new law, North Dakota has leapfrogged over Arkansas as the state with the most restrictive anti-abortion law in the country. Early in March, Arkansas banned abortion beginning at 12 weeks of pregnancy, the point at which a fetal heartbeat can be detected with an abdominal ultrasound.

In addition to North Dakota, the Arkansas measure spurred advocates to push for fetal heartbeat legislation in Kansas, Kentucky, Mississippi, Ohio, and Wyoming, according to Kaiser Health News.

The North Dakota law does not specify how a fetal heartbeat would be detected, but if a more-invasive technique is used – transvaginal ultrasound – a heartbeat can be detected at six weeks. Dalrymple signed two other abortion-related measures Tuesday, one that requires a provider to be a doctor with admitting privileges at a local hospital, and another that outlaws abortions for sex selection or in cases of genetic abnormalities.

The flurry of fetal heartbeat measures represents the latest effort by anti-abortion forces to limit abortion rights at the state level. And even if legal challenges negate such laws, they are still costly to defend against. North Dakota has only one abortion clinic, in Fargo, and abortion foes in the state aim to shut it down.

North Dakota could also be on a path toward outlawing abortion altogether. Last Friday, the North Dakota House passed a resolution calling for a state constitutional amendment defining life as starting at conception, effectively banning abortion. The state Senate approved the measure last month, and it is now likely to go before voters in November 2014. If the measure passes, North Dakota would be the first state to enact a so-called “personhood amendment,” following failed efforts in Mississippi and Colorado.

Supporters of North Dakota’s personhood amendment say it would include no exceptions for rape, incest, or to protect the life or health of the woman, according to Bloomberg News. Opponents say it could effectively outlaw some forms of contraception and in-vitro fertilization.

In a Sunday column in the Daily Beast, a North Dakota Republican state legislator writes that she voted against the fetal personhood amendment even though she opposes abortion.

“We have stepped over the line – and it’s time to walk it back,” wrote state Rep. Kathy Hawken. “Like many of my Republican colleagues, I personally am pro-life. But I vote pro-choice, because decisions about pregnancy are complex and personal. I can’t make that decision for anyone else. No legislator should.”