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N.D. lawmakers ask attorney general to appeal judge’s block on abortion law

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BISMARCK – More than 60 North Dakota lawmakers are urging Attorney General Wayne Stenehjem to appeal a federal judge’s ruling that permanently blocked a state law that would have created the strictest abortion ban in the nation.

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In his order filed April 16 in Bismarck, U.S. District Court Judge Daniel Hovland wrote that the North Dakota ban on abortions after a fetal heartbeat has been detected would essentially ban all abortions as early as six weeks of pregnancy and “cannot withstand a constitutional challenge.”

The state has 30 days to appeal, which puts the deadline at this coming Friday, though extensions may be granted.

State Rep. Bette Grande, R-Fargo, who introduced the bill creating the ban, wrote the letter to Stenehjem. Sixty-three lawmakers signed it, including two Democrats, Rep. Naomi Muscha of Enderlin and Sen. David O’Connell of Lansford.

“I had a number of constituents and legislators that had gotten a hold of me and asked if there was anything they could do,” Grande said in a phone interview Monday. “This was just a letter just to let Wayne know that we’re still here and if you need our support, here we are.”

Grande said she emailed lawmakers who voted in favor of House Bill 1456 – it passed 63-28 in the House and 26-17 in the Senate – to give them the chance to add their names to the letter. She said gave them about 48 hours to respond, and she later received replies from five or six additional lawmakers who wanted to sign the letter after she’d already sent it.

Attorney general’s spokeswoman Liz Brocker said Monday that Stenehjem had not yet decided whether to appeal the ruling and was unavailable for comment.

The New York-based Center for Reproductive Rights filed a legal challenge to the law in June on behalf of the Red River Women’s Clinic in Fargo, the state’s lone abortion provider.

David Brown, a staff attorney for the center, said it’s prepared for a possible appeal.

“We’ll do whatever’s in our power to ensure the reproductive rights of North Dakota women are safeguarded,” he said.

Hovland granted a preliminary injunction in July that temporarily blocked the bill from taking effect. His ruling last month, in which he wrote that the state “has presented no reliable medical evidence to justify the passage of this troubling law,” permanently blocked the law.

Grande noted in her letter to Stenehjem that a bipartisan majority in the Legislature passed the law and that Gov. Jack Dalrymple signed it, calling it “a legitimate attempt by a state legislature to discover the boundaries of Roe v. Wade,” the U.S. Supreme Court’s landmark 1963 ruling on abortion.

“The majority of North Dakotans agree on this question and they deserve to be heard,” the letter states. “The baby’s heartbeat deserves to be heard, too. … To stop at a lower court level is to deny justice.”

Lawmakers set aside $400,000 for Stenehjem to defend the fetal-heartbeat abortion ban. So far, the state has spent $154,749 defending the law and $234,597 overall on litigation related to its abortion laws since February 2012, according to figures provided by Stenehjem’s office.

Staff attorneys and paralegals in Stenehjem’s office also have worked 1,047 hours on the cases, which would have resulted in $93,239 in billings if the office had been handling the cases for another state agency.

Grande wrote in her letter that Hovland’s ruling was expected, not because the law is unconstitutional but because a sitting district judge isn’t going to overturn a Supreme Court decision. She stated that the high court “has not directly examined questions of the baby’s growth and development in the womb” for 40 years, despite gains made in medical science.

Brown said the Supreme Court “has never even so much as hinted that they intend to reverse Roe v. Wade, and that is what would be required to uphold this law.”

“They’ve had plenty of opportunities to do what Rep. Grande seems to be urging in her letter, and they’ve never once done so. I just don’t see a reason to believe they will,” he said.

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Mike Nowatzki
Mike Nowatzki reports for Forum News Service. He can be reached at (701) 255-5607.
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