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Strictest anti-abortion laws in U.S. face court challenge

North Dakota has enacted the earliest abortion ban in the nation, among other measures restricting the availability of the procedure.

By Alicia Gallegos — Posted April 5, 2013

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Abortion rights advocates are preparing to sue North Dakota after the passage of three anti-abortion laws that critics say compromise women’s health and interfere with the physician-patient relationship.

The measures, the strictest in the nation, ban abortions in multiple circumstances. Abortion is banned after the detection of a fetal heartbeat, which can be as early as six weeks. The laws also prevent abortions from being performed due to fetal genetic abnormalities or for gender selection, and require physicians who perform abortions in the state to have admitting privileges at a local hospital.

The laws effectively would end the practice of in vitro fertilization and affect physicians’ ability to treat serious medical conditions such as ectopic pregnancies, said Sarah Stoesz, president and CEO of Planned Parenthood Minnesota, North Dakota, South Dakota. The organization plans to seek a legal injunction against the laws, which are scheduled to go into effect Aug. 1.

The measures “create a chilling effect on the practice of medicine such that doctors would feel that politicians were looking over their shoulders and making legal judgments about the practice of medical care, and bringing their own moral and shame-based judgment into the health care practice,” Stoesz said.

In a statement, North Dakota Gov. Jack Dalrymple said he anticipated legal challenges against the measures and stressed that the laws are legitimate attempts “to discover the boundaries of Roe v. Wade.”

“Because the U.S. Supreme Court has allowed state restrictions on the performing of abortions, and because the Supreme Court has never considered this precise restriction in [North Dakota’s fetal heartbeat law], the constitutionality of this measure is an open question,” said Dalrymple, who signed the laws March 26. “The Legislative Assembly before it adjourns should appropriate dollars for a litigation fund available to the Attorney General” to defend the new statutes from court challenges.

Doctors speak out against laws

The North Dakota Medical Assn. has stated its opposition to all three laws. The measures are vague and were drafted without considering the necessary science, said Courtney Koebele, NDMA executive director.

“As a membership organization, we try not to take a stand one way or the other on abortion. However, upon examination of these bills, it was determined that they just interfered too much with the patient-physician relationship,” she said.

Koebele notes that the fetal heartbeat bill does not specify what type of measures can be used to detect a heartbeat, noting that such screening methods as a vaginal ultrasound could detect a heartbeat extremely early in a pregnancy. In addition, the ban on abortions due to genetic abnormalities does not take into account conditions that are incompatible with life, she said.

The medical association rejects the notion that physicians who perform abortions must have privileges at local hospitals. In North Dakota, a significant number of doctors who perform the procedures come from Minnesota and do not have privileges at the two major hospitals near the clinic, and the hospitals are unlikely to grant them, she said.

“It’s treating this type of procedure different than other types of procedures,” Koebele said. “There are plenty of procedures that are done outside the hospital that could be considered surgery.” There is no requirement that doctors have privileges to perform these other procedures.

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