Analysis Law and Policy

North Dakota Tells Roberts Court: The Time Is Now to End Legal Abortion

Jessica Mason Pieklo

A petition filed by attorneys for the State of North Dakota tells the U.S. Supreme Court that after more than 40 years, it is time to give back to the states the power to criminalize abortion.

Attorneys for the State of North Dakota told the U.S. Supreme Court on Thursday the time has come to overturn Roe v. Wade, and their state’s six-week abortion ban is the vehicle to do so.

The attorneys laid out their arguments in a petition filed with the Roberts Court in the fight over the nation’s most extreme anti-abortion measure. HB 1456, which Gov. Jack Dalrymple signed into law in March 2013, bans abortions as soon as a fetal heartbeat can be detected, which can be as early as six weeks post-fertilization. The law contains a very narrow exception for when the life or health of the patient is in danger, and subjects any provider who violates it to felony criminal charges.

Attorneys for the Center for Reproductive Rights challenged the law June 2013 on behalf of Red River Women’s Clinic, the state’s sole abortion provider. A federal district court judge temporarily blocked the ban in July 2013 before permanently doing so in April 2014, citing Roe v. Wade and Planned Parenthood v. Casey. He noted, “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.”

The U.S Court of Appeals for the Eighth Circuit permanently blocked the measure in July 2015, but in its opinion stated that “good reasons exist for the Court to reevaluate its jurisprudence.”

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Attorneys for the North Dakota Attorney General’s office took that opening and ran with it. “[W]hen the Court in Roe v. Wade said that conception is a process over time, the Court was incorrect,” Thursday’s petition stated. “Rather, it is human development that is a process over time. Conception takes place as a singular event, at a specific time, and is complete at that moment.”

And at that moment, the attorneys argued, is when fetal viability begins. By marking viability at conception, states would arguably have the power to ban abortion post-viability, so at the time of conception. Using testimony from Dr. Jerry M. Obritsch to support their claims of such viability, they wrote that there is “substantial evidence that the legal and factual underpinnings of Roe v. Wade, and Planned Parenthood v. Casey are now invalid and should be abandoned.” The lower courts rejected that evidence as unreliable and in conflict with established law marking viability as the point when a fetus can survive outside the womb with little additional intervention.

Attorneys for the state also offered testimony from other medical providers, including Dr. John M. Thorp Jr., regarding what they described as the “body of scientific and medical evidence of the significant physical and psychological harm caused to women by abortion.” Thorp is a well-known player in anti-abortion litigation who usually testifies in support of clinic closure laws like the admitting privileges requirements in Texas that the Roberts Court will consider later this term. When Thorp testified in support of Wisconsin’s admitting privileges requirement last summer, U.S. District Court Judge William Conley blasted his credibility, noting “deep flaws in his analysis” that abortion was a dangerous medical procedure with high complication rates. In fact, abortion is safer than pregnancy and childbirth.

“Dr. Thorp has not only been retained in a number of cases to provide testimony supporting abortion regulations, including similar challenges to admitting privileges requirements [in Alabama and Texas], but has also submitted amicus curiae briefs on his own behalf to the U.S. Supreme Court in support of abortion-related regulations,” Conley wrote in the Wisconsin challenge. In other words, Thorp has a habit of advocating against abortion rights. Some folks protest abortion clinics. Thorp writes legal briefs explaining why, in his opinion, patients should not be able to access abortion care.

“His extensive involvement in lawsuits supporting abortion regulations calls into question his ability to separate personal beliefs from the medical science surrounding these regulations,” Conley continued.

Despite being discredited by courts in Alabama as well as Wisconsin, Dr. Thorp is a key witness for the State of North Dakota and its efforts to end legal abortion.

Even so, perhaps the most outrageous argument made by attorneys for the State of North Dakota is not that the Supreme Court should accept this evidence, which has been routinely rejected by other federal courts. It is the argument that North Dakota’s safe haven law—which allows parents to abandon newborns to the state within the first year of life with an employee at any North Dakota hospital and not face criminal prosecution, and which they characterize as the most generous in the nation—removes the “undue burden” of unwanted children and thus the need for constitutional protection of abortion rights.

It is worth noting that North Dakota’s abortion rates remain steady, despite the existence of its safe haven law.

“This new legal reality, transferring child care responsibility from mother to the State, means there is no ‘undue burden’ because there is no longer any need for abortion to relieve pregnant women from unwanted child care obligations,” the attorneys from North Dakota wrote. “Every child in America is legally ‘wanted’ and abortion of ‘unwanted’ children is no longer necessary.”

The petition continued, “After all, no woman wants an abortion just to experience abortion. North Dakota is not stopping women from participating in something intrinsically valuable; like a job, or school. No one, male or female, liberal or conservative, really wants to have an abortion for its own sake.”

They added, “What women seek is relief from parental obligations; now North Dakota provides that in a more just, compassionate, and safe way than allowing a pregnant woman to kill her child and suffer the consequences alone for decades.”

All told, the North Dakota petition for review is nearly 200 pages. Nowhere in those 200 pages was there any evidence, let alone recognition, of the medical and psychological dangers of forcing patients to carry to term an unwanted pregnancy, regardless of the reason for seeking termination. Instead abortion, according to the three men asking the Supreme Court to use North Dakota’s heartbeat ban to end legal abortion, is simply a mechanism for women to “seek relief from parental obligations.”

The depths of the misogyny informing the North Dakota petition is most apparent near the close of their request, when they stated that “[a]bortion may perhaps be remembered in the future as a crude way of removing the burden of child care.” That’s right, folks. Abortion is not a medical necessity, but a “crude” social convenience for avoiding the responsibilities of parenthood.

Anti-abortion advocates hope the Roberts Court takes up the case, along with Arkansas’ request that the Supreme Court take its appeal of a decision blocking its 12-week abortion ban. The Eight Circuit Court of Appeals heard the North Dakota and Arkansas cases together, and while the federal appeals court in both cases upheld lower court decisions striking the bans, both opinions made it clear the justices would have upheld them if they had some legal vehicle to do so.

So far, the Roberts Court has not been open to direct challenges to Roe and Casey’s viability framework, most recently letting stand a decision from the Ninth Circuit Court of Appeals blocking Arizona’s 20-week abortion ban. But as Lyle Denniston at SCOTUSblog reports, there are hints the Roberts Court may be more receptive this time around. Under Supreme Court procedures, a single justice can ask the other side to respond to a petition for review. According to Denniston, the Court has asked for a response to the Arkansas Supreme Court petition, despite the fact that attorneys for the two Arkansas doctors and their patients fighting the ban had decided a response to Arkansas’ request wasn’t necessary.

That means someone on the Roberts Court wants to hear more about the reasons why states think it’s time to overturn Roe.

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