Attorneys for the State of North Dakota have appealed a federal court ruling that permanently blocked a state law that would have banned abortions as early as six weeks of pregnancy.
HB 1456 was one of anti-abortion measures passed by lawmakers last year and would have prohibited abortions after a fetal heartbeat was detected, which can be as early as six weeks into pregnancy. The law, considered to be among the most extreme in the nation, would have subjected any physician who knowingly violated the ban to felony charges punishable by up to five years in prison.
In April, U.S. District Judge Daniel Hovland permanently blocked the measure from taking effect, calling it “invalid and unconstitutional.” Following the ruling, more than 60 North Dakota anti-choice lawmakers sent a letter to state Attorney General Wayne Stenehjem urging him to appeal the ruling.
David Brown, a staff attorney at the Center for Reproductive Rights, which represents the state’s only abortion clinic in challenging the law, told RH Reality Check that the appeal was to be expected. “The appeal is not a big surprise,” said Brown. “After the hearing, the attorneys for the state announced they’d appeal if the judge ruled against them, which he did.”
“But it remains the case that no federal court has ever upheld a pre-viability ban, let alone one as extreme as this one,” he added.
Given the clear precedent that pre-viability abortion bans are not constitutional and that the decision to file an appeal is a discretionary one, Brown said it’s a question of how many resources the state is willing to use to defend the law. As reported by RH Reality Check, from January 2011 to December 2013 the state spent nearly $230,000 in taxpayer money on attorneys’ fees defending anti-choice measures. Meanwhile, at the request of Stenehjem, the state set aside $400,000 in 2013 to defend anti-choice restrictions in court.
Stenehjem said in a statement that the ruling banning the law from taking effect was to be expected, but that the purpose of the law, and the appeal, was to try and force the federal courts to re-examine the constitutionality of pre-viability abortion bans. “While Judge Hovland’s ruling was not unexpected, and is understandable given controlling case law, the Legislature passed the law in hopes that a higher court would revisit the issue,” Stenehjem said. “The office of Attorney General was created for the purpose of representing the state, including defending legislative enactments in court, and that is what my duty requires of me. It seems prudent that an appellate court should have an opportunity to consider the issue rather than have one judge overturn the judgment of the Legislative Assembly.”
The U.S. Court of Appeals for the Eighth Circuit in St. Louis will hear the appeal, with oral arguments expected to take place sometime in the fall.