A federal judge has overturned the nation's most restrictive abortion ban

The North Dakota law would have banned abortion before most women would even know they are pregnant

By Katie McDonough
Published April 17, 2014 1:40PM (EDT)

A federal judge on Wednesday overturned a North Dakota law banning abortion before most women would even know they are pregnant.

The state's "fetal heartbeat" law criminalized abortions at six weeks; it was the most extreme pre-viability ban in the nation. Under the law, a doctor who performed an abortion after six weeks could be charged with a felony and sentenced to five years in prison.

"The North Dakota strict ban on abortions at the time when a 'heartbeat' has been detected -- essentially banning all abortions as early as six weeks of pregnancy -- cannot withstand a constitutional challenge," wrote U.S. District Judge Daniel L. Hovland. "A woman's constitutional right to terminate a pregnancy before viability has been recognized by the United States Supreme Court for more than 40 years. The United States Supreme Court has clearly determined the dispositive issue presented in this lawsuit. This court is not free to impose its own view of the law."

Republican Gov. Jack Dalrymple questioned the constitutionality of the law in 2013, but proceeded to sign it anyway. "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," he said at the time.

Democratic lawmakers in the state also predicted the law's quick demise once it was challenged in court, but warned that defending the unconstitutional law would place a heavy burden on taxpayers. Democratic state Sen. Mac Schneider cautioned his colleagues that the law would waste tax dollars on “expensive and potentially protracted abortion litigation," and that “there hasn’t been near enough attention given to the costs as we’ve debated these issues ... we will be spending money on attorneys.”

According to records obtained by RH Reality Check, North Dakota has spent more than $200,000 defending its abortion restrictions in court, and has set aside additional funds to continue these battles.

The ruling is welcome news to the Red River Women's Clinic, the last remaining abortion provider in the state. "The decision is a sigh of relief for us and the women we serve. It's not a surprise. We fully expected the decision to go our way but it's always nice when it finally happens," said director Tammi Kromenaker.

Reproductive rights advocates celebrated the victory, but expressed fatigue over having to go to court time and again to preserve access to abortion care in states across the country. "The court was correct to call this law exactly what it is: a blatant violation of the constitutional guarantees afforded to all women. But women should not be forced to go to court, year after year in state after state, to protect their constitutional rights," said Nancy Northup, president and CEO of the Center for Reproductive Rights.

"We hope [Wednesday's] decision, along with the long line of decisions striking down these attempts to choke off access to safe and legal abortion services in the U.S., sends a strong message to politicians across the country that our rights cannot be legislated away."

Katie McDonough

Katie McDonough is Salon's politics writer, focusing on gender, sexuality and reproductive justice. Follow her on Twitter @kmcdonovgh or email her at kmcdonough@salon.com.

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