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North Dakota Governor Signs Law Barring Abortion After Six Weeks

One of the most restrictive abortion laws in the country can now be found in North Dakota:

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 most abortions and inviting a legal showdown over just how much states can limit access to the procedure.

Mr. Dalrymple, a Republican, signed into law three bills passed by the Republican-controlled State Legislature. 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 into pregnancy. 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.”

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

Abortion-rights advocates quickly condemned the governor’s decision as effectively banning abortion in the state and framing the laws as unconstitutional and an attack on women. Without judicial intervention, the three bills are scheduled to take effect Aug. 1.

“They have no idea what kind of a sleeping giant they have awoken,” said Tammi Kromenaker, the director of the state’s only abortion provider, the Red River Women’s Clinic in Fargo.

“I think that people are going to be much more aware of who we put in office and demand much more from our legislators,” Ms. Kromenake added.

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 measures to require doctors performing abortions to get admitting privileges at a local hospital, which could force the closure of the state’s only clinic that performs the procedure, and to outlaw abortions for gender or genetic abnormalities. A similar law adopted by Mississippi last year is under challenge in federal court.

The signings come on top of a resolution already 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 the 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 previously been voted down in Mississippi and Colorado and, critics say, would raise a host of serious constitutional issues.

I don’t see this law withstanding court scrutiny. And, indeed, I think we’ll see an injunction issued shortly.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. swbarnes2 says:

    Doug, if you had lived in North Dakota, wouldn’t you have voted for this Republican Governor and the Republican members of their state legislature?

    And once again, you don’t actually condemn the bill for being wrong, or the Republicans for being morally wrong in passing it.

    I don’t think that’s an oversight.

    Like or Dislike: Thumb up 9 Thumb down 1

  2. Since I know nothing about him I cannot possibly answer that question. It’s possible I would have done what I plan to do in the upcoming Cuccinelli-McAuliffe match here in Virginia, not vote for either candidate

    Like or Dislike: Thumb up 2 Thumb down 5

  3. swbarnes2 says:

    @Doug Mataconis:

    Since I know nothing about him I cannot possibly answer that question.

    Umm…

    Mr. Dalrymple, a Republican,

    So yes, you do know something. You do vote almost exclusively for Republicans, yes? (voting for long-time Republicans who just change labels still counts as “voting for a Republican”)

    You voted with no regrets for McDonnell, who co-authored the Republican party platform, and this legislation is in line with that, right?

    Because it seems to me that if McDonnell and his policies (like trying to eliminate laws that protected gay people from discrimination, and forcing women seeking abortions to get transvaginal probes) were good enough for you to support with your vote with no regrets, and he was such an unobjectionable Republican that he co-authored the national platform, the logical conclusion is that other Republicans who hew to the Republican party platform can’t be that far from the policies you already supported with your votes.

    There’s a straight line there, McDonnell -> Republican party platform. And you supported McDonnell with no regrets.

    And you didn’t actually say you disapproved of the intent of the legislation, did you? That can’t be an oversight.

    Like or Dislike: Thumb up 5 Thumb down 1

  4. mantis says:

    @swbarnes2:

    You do vote almost exclusively for Republicans, yes?

    I don’t really think that is established. Doug has said he can’t see himself voting for a Democrat, but that’s not the same thing.

    Like or Dislike: Thumb up 6 Thumb down 1

  5. legion says:

    What I find more interesting is that this is yet another case where fiscal conservatism is directly at odds with religious conservatism. This law, along with the so-called ‘personhood’ laws, is very likely unconstitutional. The state of North Dakota just committed to spending millions of dollars defending this piece of crap, for a very low chance of success. But when you put “shoving your religion down everyone’s throats” up against “fiscal responsibility” (or, for that matter, the social conservative principle of “limited government”), the Jeezus Freaks steer the car every single time.

    Like or Dislike: Thumb up 11 Thumb down 1

  6. CSK says:

    Correct me if I’m wrong, but doesn’t a federal law supersede a state law?

    Like or Dislike: Thumb up 5 Thumb down 0

  7. grumpy realist says:

    @CSK: Yes, which is why this is such a silly and expensive piece of political kabuki. I put it down to a bunch of Republican politicians who don’t want to be tea-bagged in the next set of primaries and have decided that this is an easy way of planting their flag for the Jeezus Freak voters.

    Pity that if there’s any blowback it’s going to be on poor pregnant women, but that’s not a population far-right Republicans care about in the first place. Better to have them pregnant and barefoot in the kitchen, anyway.

    Like or Dislike: Thumb up 5 Thumb down 1

  8. stonetools says:

    @swbarnes2:

    Look, Doug has made his position clear enough ( at least to me) . He will not vote for a Democrat, even if it means that by doing so, Republicans will be elected , who will vote to take away the rights of women and minorities. This says something to me about his character, but there it is.
    You’re not going to lecture or cajole him into changing his heartfelt beliefs, so why bother?That he is in effect consenting to the violation of the rights of women and gays by his actions , regardless of what he writes, is something he surely knows, but he’s OK with that. Time to move on.
    I’m amused that he has tweeted that its a big mistake to believe that libertarians and conservatives are the same. In real life, conservatives and libertarians both vote against Democrats and Republicans then go on to pass anti-women and anti-gay legislation, so its hard not to see libertarians as anything but Republican enablers. But that’s my view. Doug thinks he has clean hands by not voting for either, so…

    Like or Dislike: Thumb up 7 Thumb down 2

  9. Tsar Nicholas says:

    Seems like a reasonable law and well within what should (emphasis: should) be the province of a state’s plenary police powers and the 10th Amendment.

    Of course Roe and Planned Parenthood turned that all upside down. To do so various justices have pulled nonsense literally out of their own arses. Penumbra. Privacy. As a matter of federal Constitutional law. Uh, huh. Glug, glug. Just imagine if the Roberts Court had used the “penumbra” of the Constitution to strike down Obamacare. Leftists would have immolated themselves. Then they really would have gotten nutty.

    What’s sort of ironic from a demographic standpoint, of course, is that young liberals, still a decade or two away from becoming parents, and who cheer and preen when these sorts of laws get struck down, ultimately will get hit by the ton of bricks called life, at which point so many of them will change their tunes. Being pro choice with no desired restrictions is easy at age 25. It’s a lot tougher at age 45. It’s tougher still at age 55, with a teenage daughter.

    In any case, there are have been some horrific SCOTUS decisions. Dred Scott. Plessy. Miranda. Baker vs. Carr. Kelo. Hamdan. Obamacare. Roe and Planned Parenthood are at the very top of that list. Legal cognitive dissonance, with negative political ripple effects which have lasted for decades, and which show no signs of abating.

    Like or Dislike: Thumb up 1 Thumb down 12

  10. grumpy realist says:

    @Tsar Nicholas: So Tsar, I take it you would be perfectly happy if the State, in all its glory and infinite wisdom, decided that you should donate a kidney to anyone within the State that needed it? Or forced you to donate blood? Or bone marrow?

    That’s the equivalent of what this silly anti-abortion bill is doing. Forcing women into donating their bodily organs to act as a life support system for another entity, whether they want to do it or not.

    Like or Dislike: Thumb up 9 Thumb down 0

  11. @stonetools:

    When I run into a Democrat who supports economic freedom, personal liberty, and a restrained foreign policy I’ll let you know. Until then, I’m not sure why I should vote for them.

    Also, it really isn’t any of your business who I vote for or why.

    Like or Dislike: Thumb up 4 Thumb down 6

  12. swbarnes2 says:

    @stonetools:

    You’re not going to lecture or cajole him into changing his heartfelt beliefs, so why bother?

    To destroy the notion of the “reasonable Republican”, for one. The “reasonable Republican” still supports the most vile of policies with their votes, and no one should be allowed to gloss over that.

    I don’t need to change anyone’s “heartfelt beliefs”. I don’t care about anyone’s heartfelt beliefs. I care about the policies that people support with their votes. Doug is writing articles on a political board. He should not run away from the policies his preferred party and his votes make into law. Doug can’t even say that he opposes this law on principle. Why is that such a mean and awful thing to point out?

    That he is in effect consenting to the violation of the rights of women and gays by his actions , regardless of what he writes, is something he surely knows, but he’s OK with that. Time to move on.

    When Republicans pass law after law after law hurting innocent people, “move on” is not the proper response. Why is it so wicked to point out the people who are contributing to awful, cruel policies? It’s really the least we can do. None of these things would happen if people didn’t vote for these lawmakers. Why shouldn’t the people who enable them by voting for them should be held accountable for their actions? Doug helps Republicans pass policies that hurt innocent people. Why should a person who behaves in that manner not expect to be called on that?

    Like or Dislike: Thumb up 7 Thumb down 1

  13. swbarnes2 says:

    @Doug Mataconis:

    When I run into a Democrat who supports economic freedom

    Economic freedom? You mean the freedom to refuse to do business with black people? No one sane thinks that’s a real freedom, but your “libertarian” pals sure miss that “freedom”.

    Or the freedom to be paid less, because you don’t have a penis, like Lily Letterbed?

    You mean the freedom to make millions while taking advantage of American infrastructure, and then paying a smaller percentage of what you earn towards that infrastructure than people who make far, far less?

    That’s not “freedom”.

    personal liberty,

    And you choose this post, of all places, to make that argument?

    So list whatever policies you think liberals support that curtail “personal liberty”. Are you honestly saying that you don’t think the people on this board could quote more than you, all of which are far, far more restrictive than anything you mention?

    You are going to be citing minor regulatory restrictions (no selling huge sodas), while we have “denying gay marriage” and “not paying for women’s health care” and “keeping black people from voting”. What grievance do you think you have that you think is a fraction as important as any of those? I think curtailing voting rights is pretty much going to trump your whole list alone, in terms of how vital a right voting is, and how obvious Republicans have been about curtailing it.

    Also, it really isn’t any of your business who I vote for or why.

    You write on a political blog. You should be able to outline why you vote the way you do. It should not be a challenge to explain how rational and evidence based your positions are.

    And once again, you don’t actually object to the intent of the bill in the OP, do you? You could just be honest and say so, rather than act all hurt that I have the audacity to read what you write and draw conclusions from the contents of your posts.

    Like or Dislike: Thumb up 10 Thumb down 0

  14. @swbarnes2:

    I’m under no obligation to tell anyone who I vote for or why.

    Like or Dislike: Thumb up 2 Thumb down 6

  15. swbarnes2 says:

    @Doug Mataconis:

    I’m under no obligation to tell anyone who I vote for or why.

    Which is why it was oh so helpful that you obliged us by telling us that you voted with no regrets for McDonnell.

    Why is it so fantastical that you be able to explain your votes? You choose to write for a political blog! I wouldn’t write for a knitting blog, and then get all bent out of shape if someone asked me what brand of yarn I preferred for a type of project. I wouldn’t bother writing unless I thought that people might value my opinion, so why would I snap at people who dared to ask me what it was?

    Like or Dislike: Thumb up 5 Thumb down 0

  16. stonetools says:

    @Doug Mataconis:

    Actually, I agree that who you vote for is your business. But I can draw my conclusions about what policies you really want by looking to who you actually vote for.

    When I run into a Democrat who supports economic freedom, personal liberty, and a restrained foreign policy

    You mean like Governor Bob McDonnell?

    Like or Dislike: Thumb up 2 Thumb down 0

  17. edmondo says:

    When I run into a Democrat who supports economic freedom, personal liberty, and a restrained foreign policy I’ll let you know.

    Could you let us know when you find a Republican who supports these principles too? You know, a Republican who wants to stay out of my bedroom while not voting for corporate welfare for every one of their campign contributors?

    Like or Dislike: Thumb up 10 Thumb down 0

  18. An Interested Party says:

    Ahh, to be a libertarian means never having to say you’re sorry for voting for someone like Bob McDonnell, despite the fact that he seems to hold many anti-libertarian views…but at least he isn’t a Democrat…

    Like or Dislike: Thumb up 7 Thumb down 0

  19. gVOR08 says:

    I was born and raised in ND longer ago than I care to get into. At that time the state was solidly Democratic, still proudly Prairie Populist. The land of Garrison Keilor. Proudly rational, fair, and egalitarian. I guess they now get FOX News too. Sad.

    Like or Dislike: Thumb up 2 Thumb down 0

  20. Advances in technology permit life to be detected at significantly earlier stages in pregnancy now than at the time Roe v. Wade established trimester by trimester structuring of rights of babies to live. I was once agnostic about abortions. But now I’ve seen and listened to many early term ultrasounds; subsequent to those experiences I could no more be involved in a decision to kill a fetus than to murder a full term baby sleeping in a crib.

    Like or Dislike: Thumb up 1 Thumb down 8

  21. Just 'nutha ig'rant cracker says:

    @mantis: Not sure I agree. Since Doug “can’t see himself voting for a Democrat” and the system in the United States is, essentially, a two party system (allowing that most “independent” candidates, and all Libertarians, are sock puppet Republicans), “I can’t see myself voting for a Democrat” can only mean that one votes for Republicans or doesn’t vote. We have no evidence that Doug refrains from voting, so, while I see the distinction that you are trying to make, it’s a distinction without a difference.

    Like or Dislike: Thumb up 9 Thumb down 0

  22. Just 'nutha ig'rant cracker says:

    @legion: The “social conservative principle of ‘limited government'” is restricted to limiting government that some particular social conservative disapproves of. If it wasn’t, they would be able to effectively state which functions of government they wish to eliminate and give reasons as to why those eliminations would make the social contract stronger.

    It’s just another smoke and mirrors magic show.

    Like or Dislike: Thumb up 7 Thumb down 0

  23. swbarnes2 says:

    @Just ‘nutha ig’rant cracker:

    We have no evidence that Doug refrains from voting,

    Doug is claiming that maybe he’ll do that for the Virginia governor race. But I predict he will not confirm that when the day comes, so we will still lack that evidence.

    But he won’t actually say what policies of Cuccinelli he finds objectionable enough to drive him from the polls. Heck, he won’t even say that he finds this North Dakota abortion policy objectionable. In light of his support of the Republican party platform (by voting for Republican candidates in general, and a co-author of the platform specifically), I’m finding it hard to conclude that he does. I think he posts these things as a “Ha ha, suck it, women/minorities/gay people/etc”, since there is almost never any criticism of whatever morally abhorrent statement or policy is being described.

    Like or Dislike: Thumb up 6 Thumb down 0

  24. Crispy says:

    Sorry Doug, your timidity disappoints me. I used to enjoy coming here, but I won’t be back…

    Like or Dislike: Thumb up 0 Thumb down 1

  25. swearyanthony says:

    But remember, the “War on Women” is just a myth.

    Like or Dislike: Thumb up 8 Thumb down 0

  26. Jen says:

    @bill: The problem, of course, is that length of pregnancy is determined by the date of last menstrual cycle. For a woman with a rock-solid, tell the date by it cycle, it would be TWO weeks from the time of the last missed period to make that decision. For women with irregular cycles, they could miss the 6-week cutoff without even realizing it.

    That’s all beside the point of course, because this is unconstitutional. And the removal of exceptions for genetic abnormalities is horrible–further evidence that Republicans care not one iota for the women in these incredibly difficult and painful situations.

    Like or Dislike: Thumb up 9 Thumb down 0

  27. Jenos Idanian #13 says:

    @Doug Mataconis: When I run into a Democrat who supports economic freedom, personal liberty, and a restrained foreign policy I’ll let you know.

    Why do you only say these sorts of things when you are challenged by liberals?

    You spend the vast majority of your time criticizing Republicans. You only bring up your differences with Democrats in cases like this. When was the last time you actively expressed your disagreements with the Left in a full article?

    I just went through the first two pages of your archives, taking articles back to March 7, and didn’t find a single article where you expressed disagreement or disapproval with any major Democratic policies or positions. Yes, you mocked Bloomberg’s soda ban and you did mention the investigation into Senator Menendez — but Bloomberg’s an independent and you made sure to give Menendez the presumption of innocence, which you denied Representative Bachmann.

    Your rejection of liberalism would be more convincing, I think, if you didn’t only trot it out when you are called out like you are here.

    Like or Dislike: Thumb up 1 Thumb down 6

  28. Tony W says:

    @swbarnes2:

    write for a knitting blog

    Wow – can you even imagine how boring a knitting blog would be?

    Like or Dislike: Thumb up 1 Thumb down 0

  29. Rob in CT says:

    I’ve seen and listened to many early term ultrasounds; subsequent to those experiences I could no more be involved in a decision to kill a fetus than to murder a full term baby sleeping in a crib.

    Odd how different people interpret the same things. I’ve seen early ultrasounds like that too, and what I saw was the functional equivalent of a tadpole. We’re talking about six weeks here, folks.

    I get that the “viability” standard is a fuzzy one, impacted by technology. That’s a fair point. But this is nutty. Six weeks might as well be a full ban.

    Like or Dislike: Thumb up 5 Thumb down 0

  30. ernieyeball says:

    @Jen: As a point of information I know a woman who discovered she was pregnant last November. The doctor told her she was due in 6 weeks.
    She said that she had not missed one menstrual cycle during her pregnancy. She also did not appear to be pregnant.
    While it was a complete surprise to her and her husband I am happy to report that she delivered a healthy daughter in January.
    The idea that lenghth of pregnancy can be determined by menstrual cycle is not 100%.
    Maybe North Dakota will force all menstruating females to submit to transvaginal ultrasound just to be sure.

    Like or Dislike: Thumb up 1 Thumb down 0

  31. swbarnes2 says:

    @bill:

    i actually have no problem with taking care of it asap-

    Empirically, the day after sex is too late for Republicans. There is no “asap” window there.

    So if a woman figures out she is pregnant after 8 weeks, and it takes her 2 weeks to coordinate getting two consecutive days off of work, and to consecutive days of child care, and then she has to spend her emergency fund on a new water heater, and can’t go again for another two weeks, your attitude is that she should just suck up having another baby she doesn’t want?

    What if a man doesn’t start to beat his girlfriend until she is 14 weeks pregnant? She should just suck it up too? What if he’s beating her because she’s pregnant?

    Like or Dislike: Thumb up 3 Thumb down 0

  32. grumpy realist says:

    As said, let’s just take the zygotes out of the women who don’t want them and dump them in the bellies of the forced-organ-donators. Everybody wins!

    Like or Dislike: Thumb up 0 Thumb down 0

  33. Tyrell says:

    @CSK: No, unless the Constitution gives the Federal government that expressed power relating to law. What has been going on for so long is that the Federal government routinely exceeds its Constitutional authority in many areas: health care, education, taxation, licensing, and many other areas. The states should stand up and stop the bullying big brother, commisar Soviet style of the Federal government. One example: big brother government controlling the public schools lunch program.

    Like or Dislike: Thumb up 0 Thumb down 0

  34. grumpy realist says:

    @Jen: I wonder if (aside from other points) an argument could be made because the average length of one’s menstrual cycle isn’t the same for each woman and thus places women with longer cycles at a disadvantage?

    Hell, I used to have a 40-42 day cycle myself.

    Like or Dislike: Thumb up 0 Thumb down 0

  35. grumpy realist says:

    @bill: We don’t seem to worry about killing human beings when it comes to “standing your ground.”

    Why shouldn’t I defend myself against the trespass of my body? I’ve got something in my womb that’s acting as a parasite sucking all of its nourishment off my bloodstream!

    Like or Dislike: Thumb up 0 Thumb down 0

  36. swbarnes2 says:

    @bill:

    most republicans are not uber conservatives just like most democrats aren’t uber liberals.

    Most Republicans vote for people who pass “uber-republican laws” anyway. I don’t care what’s in anyone’s heart, I care about the policies they support with their votes.

    you have a chance to rid yourself of your mistake, but it shouldn’t take that long. you were once that parasite, as we all were. some of us are still parasites too….

    Again, with this six week deadline, most people won’t have a chance. Republicans think that the day after sex is “too long”. And who the hell are you to know how long it ought to take a poor single mother to arrange for an expensive medical procedure with a 24 hour waiting period that can only be performed in a city several hours away?

    How about this one:”What should Savita Halappanaver have done, if she wanted to live? Doctors deemed she was too far along for an abortion, so you are okay with that outcome?

    Like or Dislike: Thumb up 0 Thumb down 0

  37. ernieyeball says:

    @bill: …you have a chance to rid yourself of your mistake, but it shouldn’t take that long.

    And if you don’t know how long you have been pregnant, be sure to consult with
    Dr. Bill MD. He is an expert on the matter.

    Like or Dislike: Thumb up 0 Thumb down 0

  38. grumpy realist says:

    @bill: Dude, I pointed out that I had a 40-42 day period….42 days IS 6 weeks, you nincompoop. So I won’t even get a head’s up on the situation until it’s too late to do anything about it.

    Do you own stock in a company that makes pregnancy tests? Because that’s the only reason I can see for your supporting this.

    Like or Dislike: Thumb up 0 Thumb down 0