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Anti-choice pseudoscience hits a new low: North Dakota argues that viability begins at conception 

North Dakota is developing a legal strategy to strike at the very heart of Roe v. Wade. It's a terrifying prospect

Katie McDonough
May 22, 2014 11:11PM (UTC)

It's been a little more than a month since a federal judge permanently blocked North Dakota’s “fetal heartbeat” ban, which criminalized abortion as early as six weeks. Attorneys for the state promptly appealed the decision, which isn't surprising since lawmakers in North Dakota were quite explicit about passing the measure as a way to get the Supreme Court to revisit Roe v. Wade. State attorneys are hoping the appeal will get them one step closer to that goal.

But as RH Reality Check Senior Legal Analyst Jessica Mason Pieklo points out, the hypocrisy and disregard for women's health and constitutional rights displayed by the North Dakota state Legislature isn't unusual. What is unusual is the fervor with which North Dakota is developing a legal strategy to strike at the very heart of Roe and the underpinning of legal abortion in the United States. The North Dakota case also exposes how bogus claims made by doctors outside the medical mainstream can seriously threaten access to legal abortion.


In its defense of the ban, state attorneys submitted an affidavit from Dr. Jerry M. Obritsch, an OB-GYN based out of Bismark who believes that because embryos can survive in a test tube for a few days as part of the process of in vitro fertilization that "an unborn child is viable … from the time of conception."

More from Mason Pieklo:

Combined, Roe and [Planned Parenthood v.] 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.

The consequences of North Dakota prevailing here would be catastrophic. As Mason Pieklo writes, "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."

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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