8th Circuit Blocks N.D. ‘Heartbeat’ Abortion Ban

(CN) - The Eighth Circuit on Wednesday permanently enjoined North Dakota from enforcing a law that banned most abortions once a fetal heartbeat can be detected.

The ruling, writing by U.S. Circuit Judge Bobby Shepherd, upheld a 2013 ruling by a federal judge in Bismarck, N.D. that blocked the law before it could take effect.

U.S. District Judge Daniel L. Hovland held at that time that North Dakota must follow Supreme Court precedent, the justices having long maintained that states cannot prohibit pre-viability abortions.

The law was challenged by the state's only abortion clinic, the Red River Women's Clinic of Fargo, N.D., which argued that a ban at six weeks would take effect before many women even know they are pregnant.

The state sought a bench trial to present evidence that it said would show a fetus can survive for days with medical intervention even in the first trimester of pregnancy.

During arguments before Judge Hovland, the state presented a declaration from Dr. Jerry Obritsch, an obstetrician and gynecologist, who said that an unborn child's heartbeat is detectable by about 6 to 8 weeks and that an unborn child is viable from conception because in vitro fertilization "allows an embryonic unborn child to live outside the human uterus (womb) for 2 -6 days after conception."

Writing for the three-judge panel, Judge Shepherd said "Because there is no genuine dispute that H.B. 1456 generally prohibits abortions before viability - as the Supreme Court has defined that concept - and because we are bound by Supreme Court precedent holding that states may not prohibit pre-viability abortions, we must affirm the district court's grant of summary judgment for the plaintiffs."

But Shepherd also opined that that "good reasons exist for the [Supreme] Court to reevaluate its jurisprudence."

"To begin, the Court's viability standard has proven unsatisfactory because it gives too little consideration to the 'substantial state interest in potential life throughout pregnancy.'"

In addition, he said, "Medical and scientific advances further show that the concept of viability is itself subject to change ."

Finally, he suggested that the facts underlying the landmark abortion rulings Roe and Casey may have changed.

These statements notwithstanding, proponents of blocking the ban cheered the ruling Wednesday.

"Today's decision reaffirms that the U.S. Constitution protects women from the legislative attacks of politicians who would deny them their right to safety and legally end a pregnancy," said Nancy Northup, president and chief executive of the Center of Reproductive Rights, which represented the plaintiff.

Representatives of the parties advocating for the law could not immediately be reached for comment Wednesday evening.

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