There’s one thing many supporters and opponents of abortion rights can agree on: North Dakota’s new law banning abortions as early as six weeks into a pregnancy flouts the Supreme Court’s Roe v. Wade decision. The law, the strictest in the nation, bans the procedure after a heartbeat is detected in a fetus. Roe v. Wade allows terminations until a fetus is viable outside the womb.
Governor Jack Dalrymple was clear about the intentions of the law—to force an eventual Supreme Court case that could lead to the overturning of the landmark abortion ruling. “Although the likelihood of this measure surviving a court challenge remains in question, this bill is nevertheless a legitimate attempt by a state legislature to discover the boundaries of Roe v. Wade,” Dalrymple said after signing the legislation.
North Dakota lawmakers have passed multiple bills banning abortion during various stages of pregnancy with the hopes of sending a test case to the high court. Besides banning abortions after a heartbeat is detected, the legislature passed a 20-week ban that Dalrymple signed on April 16. Lawmakers also approved a “personhood” constitutional amendment, which will go before voters next year, to end abortions. “I would be happy if this led to a Supreme Court challenge,” says Representative Bette Grande, a Republican who sponsored the six-week ban. “Anything in the womb is a baby for me.”
The justices haven’t considered a challenge to Roe since 1992, and there’s no guarantee they’d be willing to hear one. Yet in the first three months of the year, legislators in 13 other states also introduced measures that conflict with the ruling, according to the Guttmacher Institute, which tracks abortion legislation. As the bills proliferate, says Julie Nice, a constitutional law professor at the University of San Francisco School of Law, “it’s increasingly difficult for the Supreme Court to ignore them.”
The Center for Reproductive Rights, which represents doctors and clinics for free, already plans to sue North Dakota to block the six-week ban before it takes effect on Aug. 1 in hopes of keeping the state’s lone abortion clinic open. Dalrymple has asked lawmakers to set aside money to defend the law. Attorney General Wayne Stenehjem estimates he’ll need at least $400,000.
When the Roe decision was handed down in 1973, a fetus was considered viable outside the womb at about 26 weeks. Advances in medicine have cut the time frame to 24 weeks. That makes the ruling vulnerable, says Mathew Staver, founder of Liberty Counsel, a Christian nonprofit specializing in anti-abortion litigation that’s offered assistance to North Dakota.
Staver also draws encouragement from a five-year-old landmark decision on a similarly contentious issue: guns. Thirty years ago, few predicted the Supreme Court would back the individual right to bear arms. Proponents pressed on anyway, and in 2008 the court ruled that the Second Amendment of the Constitution protected the gun rights of individuals, not just militias.
The decision, Staver says, shows that even though a woman’s right to an abortion might seem constitutionally settled, North Dakota’s campaign to get the court to reconsider its previous rulings is well worth the fight. “There’s always going to be people who say this isn’t the right time,” he says. “You can’t build the house unless you start with one brick.”