Analysis Law and Policy

Attorneys for North Dakota Argue Viability Begins at Conception

Jessica Mason Pieklo

In the appeal of a lower court ruling permanently blocking the state's "heartbeat" ban, attorneys for the state lay out their argument as to why Roe v. Wade should be overturned.

Earlier this month, attorneys for the State of North Dakota filed their appeal of a federal court ruling that permanently blocked the state’s “heartbeat” ban, a measure that bans abortion as soon as a fetal heartbeat can be detected, which can be as early as six weeks into a pregnancy. News that the state’s attorney general’s office had appealed the decision was not a surprise, especially since lawmakers acknowledged that the ban, which is considered the strictest in the nation, was passed specifically to challenge Roe v. Wade.

But it’s one thing for anti-chioce lawmakers to grandstand on the campaign trail and the floor of state legislatures that they plan on overturning the landmark Supreme Court decision. It’s another thing to develop the legal arguments and strategies to actually strike at the decision, which is exactly what the North Dakota appeal sets out to do.

In the state’s notice of appeal, attorneys set forth the issues they want the federal appeals court to consider. Normally issues of appeal identify points of law the lower court got wrong, such as claiming the court came to the wrong conclusion when weighing the evidence or that it admitted evidence it should have otherwise excluded. But in North Dakota’s statement of the issues, the first assignment of error attorneys for the state assign is to the Supreme Court, stating that the “underpinnings” of the holdings in Roe v. Wade and Planned Parenthood v. Casey are no longer valid and that those decisions should be overturned.

What exactly are the underpinnings attorneys for North Dakota believe are no longer valid? Pretty much all of them.

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When the lower court was considering the constitutionality of North Dakota’s heartbeat ban, attorneys for the state argued that fetal viability occurs at the point of conception. In support of this claim, the attorneys submitted the affidavit of Jerry M. Obritsch, a Bismark OB-GYN who argued that because newly created embryos can survive in a test tube for two to six days as part of in vitro fertilization, some in the medical community now believe viability occurs at the point of conception. It’s a radical argument that collapses entirely the legal standards of viability as the cutoff point at which states can ban abortion with the concept of fetal “personhood” by effectively declaring that life begins at conception.

Thankfully, the North Dakota federal court disagreed. But the lower court didn’t reject Obritsch’s claims regarding fetal viability outright, instead ruling that his opinion was not enough to counter the evidence submitted by reproductive rights advocates on how the mainstream medical community measures fetal viability. Despite the state’s claim, the lower court ruled, the evidence just didn’t suggest that the issue of fetal viability was genuinely a matter of dispute.

In their appeal, attorneys for the state argue that the lower court weighed that evidence wrong. Instead of blocking the law, the lower court should have ruled that Obritsch’s affidavit was enough to show a genuine factual dispute and allowed the state to go to trial and defend the law.

There’s a lot going on in the State of North Dakota’s appeal, and it requires some unpacking. Let’s start with the legal argument. Combined, Roe and Casey state that a woman has a constitutional right to terminate a pregnancy, but that that right is not absolute. At the point of fetal viability, the state’s interests in protecting potential life becomes compelling enough in some circumstances that the state’s interest can outweigh the woman’s right to an abortion. In a later case, Gonzales v. Carhart, the Supreme Court said that when lawmakers are considering matters of “contested science,” lawmakers are essentially free to choose a side in the scientific debate and there’s not much the courts can do about it.

In North Dakota, attorneys for the state are arguing that as a matter of law lawmakers can decide that to mark conception as the point of fetal viability and constitutionally restrict abortion rights from that point since viability is now a matter of “disputed” science. Because the lower court failed to recognize that fact, attorneys for the state argue, it wrongly blocked the heartbeat ban from taking effect and at the very least should have allowed the state to put forward its argument at trial that the medical community views viability and conception as interchangeable concepts.

If attorneys for the State of North Dakota are successful in making this argument and lawmakers are in fact free to side with doctors who claim fetal viability begins at conception when crafting anti-abortion restrictions, then the very idea that women retain some sphere of reproductive privacy where the state can never enter evaporates completely. In fact, it’s already starting to happen, and not just in states like North Dakota or Arkansas, where lawmakers have put forward extreme pre-viability abortion bans in the name of sparking a legal challenges to the precedent that viability marks the point at which the government can ban abortion outright. During congressional debate of a nationwide 20-week abortion ban, one of the champions of the bill in the Senate, Lindsey Graham (R-SC), conflated fetal viability with “fetal pain” 20-week abortion bans. “The theory of the case is not viability, medical viability, [as in] Roe v. Wade—it’s a new theory I think makes eminent sense, that the state has a compelling interest to protect an unborn child at this stage of pregnancy,” Graham said on the Senate floor. “We already have laws banning abortion after 24 weeks. The reason we’re backing it up four weeks is because at 20 weeks, people have been born and survived. I know two twins who were born at 20 weeks.”

Now, maybe Graham didn’t mean to conflate fetal viability with the same measure as his 20-week abortion ban, but the fact that he did at least suggests that anti-choice advocates see in these constitutional bright-line standards malleable political arguments, such as the argument that a 20-week abortion ban on the rejected premise of fetal pain is somehow just a little adjustment to other abortion restrictions. Or like Graham’s claim that advancing a 20-week ban isn’t about blurring the viability standard in the law when his own statements on the Senate floor did precisely that.

The U.S. Court of Appeals for the Eighth Circuit will hear arguments in the North Dakota case later this fall, and while the Eighth Circuit is not as conservative as some federal appeals courts, it is still a conservative jurisdiction known to be hostile to abortion rights. So far the federal appellate courts and the Supreme Court have not bit on conservatives’ challenge they overturn Roe directly through manipulating the viability standard, leaving in place an Arizona law that most directly offered the chance. Should the Eighth Circuit agree with North Dakota and open the gates to anti-choice lawmakers arguing fetal viability as both matters of disputed science and law, that decision could prompt the Roberts Court to step in. Which is exactly what anti-choice activists hope they will do.

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