North Dakota likely to appeal blockage of fetal heartbeat abortion ban to Supreme Court

North Dakota Attorney General Wayne Stenehjem said Wednesday he will likely request the Supreme Court to review a state ban on abortions after detectable heartbeat, which has been blocked by lower courts.

The state law would have made it illegal for a doctor to perform an abortion if the fetus has a detectable heartbeat, which is at around six weeks of pregnancy.
In July 2013, U.S. District Court Judge Daniel Hovland granted a preliminary injunction against the law, and ruled to permanently block it in April 2014. Hovland called the abortion ban “an invalid and unconstitutional law, arguing that the state did not present necessary medical evidence “to justify the passage of this troubling law.”

In an ruling on July 22, a three-judge panel of the U.S. Eighth Circuit Court of Appeals affirmed Hovland’s ruling, permanently blocking the law from taking effect. The Court of Appeals claimed that it must follow precedent from the United States Supreme Court. However, the three judges also acknowledged the basis for an appeal to the U.S. Supreme Court, stating “good reasons exist for the [Supreme Court] to reevaluate its jurisprudence,” also arguing that medical and scientific advances have demonstrated the concept of viability is subject to change. The judges claimed that the choice regarding abortion laws “is better left to the states, which might find their interest in protecting unborn children better served by a more consistent and certain marker than viability.”

Attorney General Stenehjem acknowledges the uphill climb ahead of North Dakota. “It’s a longshot to appeal it,” he said, “but still the statute says the attorney general shall defend [the state’s laws], and I think most people understand that’s what we need to do.” Stenehjem also said an attorney has offered to draft the Supreme Court petition pro bono, thus it will cost North Dakota taxpayers nothing.

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