Tara Culp-Ressler, Nation of Change, January 26, 2016
The Supreme Court won’t allow North Dakota to implement a law that criminalizes abortion after just six weeks — a point before many women even realize they’re pregnant — in a move that effectively blocks the harshest abortion ban in the country.
Although North Dakota’s six-week ban was first passed in 2013, it has been prevented from taking effect ever since then. A lower court decision determined the law violates women’s constitutional right to an abortion under Roe v. Wade. North Dakota officials appealed to the Supreme Court hoping for a reversal of that decision, but on Monday, the justices declined to take up the case.
The Supreme Court also recently turned away a similar case from Arkansas, where officials are seeking to implement a 12-week abortion ban, ensuring that law will remain blocked as well.
Both North Dakota’s and Arkansas’ abortion laws are known as “fetal heartbeat” bans. This legislation seeks to criminalize abortion after a fetal heartbeat can first be detected, though the two laws define different points in pregnancy because they rely on different kinds of ultrasound technology.
It makes sense that these states’ aggressive efforts to ban abortion have been unsuccessful in the courts. Under Roe v. Wade, abortion is legal up until the point of viability — generally understood to be around 24 weeks of pregnancy — and at least while Roe still stands, courts have been hesitant to dramatically narrow the available window for legal abortion services. Although some states are testing the bounds by enacting 20-week abortion bans, particularly blatant attempts to curtail Roe‘s protections represent a riskier strategy for abortion opponents.
“We knew it was unlikely and it came as no surprise,” North Dakota Attorney General Wayne Stenehjem said in response to the Supreme Court’s refusal to take up the case.
But that doesn’t mean abortion rights are safe at the Supreme Court. This year, the justices are set to hear a different abortion-related case regarding a Texas law — a law that doesn’t ban abortion outright, but that limits access to the procedure with sham regulations enacted under the guise of protecting “women’s health.”
Under that law, which requires abortion providers to comply with burdensome and expensive standards, dozens of Texas clinics have been forced to close because they can’t afford to navigate the extra red tape. Although these new standards are medically unnecessary, abortion opponents have successfully framed the law as an effort to make the procedure safer and better regulated — ultimately leaving abortion access out of reach for thousands of women.
“We continue to look to the nation’s highest court to protect the rights, health, and dignity of millions of women and now strike down Texas’ clinic shutdown law,” Nancy Northup, the president of the Center for Reproductive Rights, said in a statement.
However, there are no guarantees. Unlike harsh abortion bans, this more indirect strategy to undermine abortion rights has been quite successful for abortion opponents.
As Texas-style regulations have swept the country, lower courts have been compelled by arguments that these laws don’t directly violate Roe v. Wade — as opposed to, for example, a six-week ban. And if the high court agrees that Texas’ law should be allowed to stand, states will have even more legal cover to enact laws that don’t explicitly ban abortion, but that essentially barricade access to legal abortion services for women who can’t afford to travel hundreds of miles to get to the nearest clinic.
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