Federalism Reenters Abortion Debate

Federal Versus State: Will North Dakota’s Abortion Laws Come Under the Supreme Court’s Scrutiny?

By Kristen Luciani | The Save Jersey Blog

unborn babyWith a simple stroke of his pen, Save Jerseyans, the Governor of North Dakota effectively challenged a forty-year old “fundamental right” granted to women residing in the United States, giving way to extreme controversy and plenty of legal wrangling.

The three laws signed by Governor Jack Dalrymple are now the most restrictive in the nation, the focal point being a ban on abortions after the initial detection of a fetal heartbeat, about six weeks following conception. The other two laws include prohibiting abortions that are executed solely for purposes of gender selection and avoidance of genetic abnormalities, as well as requiring that a physician performing abortions must be a staffer at a hospital. No longer will clinics be the location for such procedures.

Arkansas’s legislature actually enacted an abortion ban after twelve weeks post conception earlier this month, thereby making the North Dakota law the most stringent.

It goes without saying that activists are already challenging the legality of the North Dakota laws, and are seeking any way to have them blocked by court battle, if not overturned altogether.

Is it wrong that North Dakota took these actions? Critics are calling these laws unconstitutional. Judging by the fact that Governor Dalrymple required the legislature to set aside funds to handle the costly legal battles sure to ensue in the very near future makes me wonder how he feels about that point of view….

But let’s consider the facts.

In 1973, Roe v. Wade legalized abortion in the first trimester. The Supreme Court’s decision prohibited states from banning abortion early in pregnancy, but it gave them the right to pose restrictions in the second and third trimesters to protect the mother and the “potential” life of the unborn child. The ruling effectively established a “trimester” threshold of state interest during the life of a fetus directly corresponding to its increasing ability to survive outside of the womb.

Then there was the 1994 case of Planned Parenthood v. Casey, which basically upheld the main statutes of Roe v. Wade, but placed focus on viability of the fetus as the point at which states had the right to override a woman’s autonomy. This case also lowered the legal standard to which states would be held in justifying restrictions on a woman’s right to choose. This ruling provided the states with more latitude in determining when a woman’s right to choose infringed on the life of her unborn baby.

But Roe v. Wade continues to be hotly contested, forty years later. In the past two years alone, 30 states have passed 135 laws putting restrictions on access to abortions. Twenty-one states have adopted laws restricting insurance companies from covering the procedures.

North Dakota, even with its new laws taking the most extreme stance against abortion, is not making abortion illegal. The new law is essentially imposing time limits on when abortions can be performed, based on new medical knowledge that has been collected since the initial Roe v. Wade decision. After Planned Parenthood v. Casey, states have the right to place restrictions based on perceived viability. North Dakota is defining “viability” at the time when a fetal heartbeat can be detected, an interpretation of a past ruling. Many opinions vary with regard to when a fetus actually becomes “viable,” and while a six-week old fetus certainly cannot survive outside of a woman’s body, it is still considered to be alive by lawmakers in that state.

As an aside, critics of Roe v. Wade also have said that laws relating to abortions should really be ascertained and enforced by the states, as that this is out of the purview of the federal government. As I am a proponent for state’s rights, I do tend to agree that big government needs to take a rather large step back in this case. And since so many states have established their own laws restricting abortion in years past, evidently I am not alone in my opinion. But it will nevertheless be interesting to see the degree to which the North Dakota’s laws are challenged, and what actions, if any, the higher courts in determining constitutionality will take.

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