U.S. District Judge Daniel Hovland has stopped North Dakota’s new abortion law, holding it is likely unconstitutional under current Supreme Court precedent. Pro-life proponents are taking a chance with this case.
In MKB Management Corp. v. Burdick, Hovland issued a preliminary injunction against North Dakota’s law, which bans abortion after the baby’s heartbeat can be detected. That currently occurs at around six weeks into pregnancy.
In Hovland’s opinion, he notes that under current North Dakota law, abortion is already banned after “the point in pregnancy when the unborn child is reasonably expected to have reached viability” unless a doctor decides abortion is necessary to save the mother’s life or there is significant risk of permanent physical or mental harm. Current law also correctly defines viability as the child’s ability to live outside the womb with medical aid.
But Hovland says this latest law does not pass muster under controlling Supreme Court precedent, which he must follow. The Supreme Court declared a right to abortion in 1973 in Roe v. Wade, then in 1992 replaced Roe‘s framework in Planned Parenthood v. Casey.
The Court had no majority opinion in Casey. The controlling opinion was jointly written by three justices: David Souter (solidly liberal), Sandra Day O’Connor (usually moderate, but a big supporter of abortion rights), and Anthony Kennedy (also moderate, but with significant conservative leanings on this issue). Of those three, only Kennedy is still on the Court and would likely be the decisive vote to decide this law’s fate.
Casey allows any restriction on abortion after viability unless the mother’s life or health is endangered but allows restrictions before viability that do not impose an “undue burden” on having abortions. An “undue burden” exists if “in a large fraction of the cases… it will operate as a substantial obstacle to a woman’s choice to undergo an abortion.”
Hovland observed, “A woman’s constitutional right to terminate a pregnancy before viability has consistently been upheld by the United States Supreme Court in the forty years since Roe v. Wade.”
He continues, “To suggest a fetus can live outside the mother’s womb at six weeks, even with the help of innovative neonatal advancements, is simply unproven. There is no evidence in the record before the Court to support such a position.” The plaintiffs produced medical experts who testified that viability is currently around 24 weeks into pregnancy.
This law is taking quite a risk. As we’ve previously written, banning abortion after unborn children are capable of feeling pain at 20 weeks–such as Texas’ new law–has a very good chance of being upheld by the current Supreme Court, even though unborn children are not yet viable at 20 weeks.
That is a very smart route supported by many pro-life attorneys to try to get five justices to uphold an abortion restriction before viability, creating favorable pro-life precedent. It also gives Justice Kennedy a chance to signal how much further he might be willing to go, as well as getting Chief Justice John Roberts on record on abortion. The Court may send a signal there as to whether they would go so far as abandoning Casey to allow restrictions on abortion much earlier than previously.
But forcing this issue upon the Court now is risky. If Kennedy balks at the North Dakota law, it will create a very damaging pro-abortion precedent that will set back efforts to overrule Roe and Casey, possibly for years to come.
The U.S. Court of Appeals for the Eighth Circuit will very likely affirm Hovland in stopping this law, as that appeals court is likewise bound by the Supreme Court. It is anyone’s guess how this law will fare before the justices, though many believe it faces a steep uphill climb. This is a case worth watching as it goes forward.
Breitbart News legal columnist Ken Klukowski is a fellow with the American Civil Rights Union. Follow him on Twitter @kenklukowski.