Supreme Court won’t review Arkansas abortion ban, sets stage for decision on ND law

Publish Date: 01/19/2016

The U.S. Supreme Court on Tuesday refused to review Arkansas’ ban on abortion at 12 weeks of pregnancy, setting the stage for a decision on North Dakota’s petition for review of its six-week abortion ban that would be the strictest in the nation.

North Dakota Attorney General Wayne Stenehjem was reluctant to predict how justices will decide on the state’s petition filed in November. He noted there are differences between the two cases and he believes North Dakota’s case had a better record.

“We always knew it was long shot, but we’ll see,” he said in a phone interview.

The New York-based Center for Reproductive Rights and Bismarck attorney Thomas Dickson challenged the law on behalf of the Red River Women’s Clinic in Fargo, the state’s lone abortion provider. U.S. District Court Judge Daniel Hovland declared the law unconstitutional and permanently blocked it in April 2014.

A three-judge panel of the U.S. Eighth Circuit Court of Appeals affirmed Hovland’s ruling in July.

Supreme Court justices are scheduled to review the North Dakota case Friday and could decide as early as that afternoon whether to grant review, though their normal practice would be to decide Monday, Center for Reproductive Rights attorney David Brown said.

Brown said the decision Tuesday to deny the petition filed by Arkansas’ attorney general last September came as no surprise and is consistent with the high court’s history of reaffirming Roe v. Wade, the landmark 1973 U.S. Supreme Court decision that ruled states can’t ban abortion prior to viability, or about 24 weeks.

“We’ve been confident this whole time throughout the duration of this case that the Supreme Court won’t do anything to interfere with the lower court’s interpretation that this ban is blatantly unconstitutional,” Brown said, adding, “I don’t see why the North Dakota case would be any different.”

The North Dakota law – among a wave of anti-abortion legislation approved by lawmakers in several states in 2013 – would make it a Class C felony for a doctor to perform an abortion if the fetus has a detectable heartbeat, which is at about six weeks of pregnancy.

It was one of three anti-abortion bills that Republican Gov. Jack Dalrymple signed into law in March 2013, at the time calling them “a legitimate attempt by a state legislature to discover the boundaries of Roe v. Wade.”

Arkansas Gov. Mike Beebe, a Democrat, had vetoed the 12-week ban in his state, but both houses of the state Legislature voted to override his veto. A federal judge struck down the ban, and the appeals court upheld the ruling last May.

The Supreme Court receives about 10,000 petitions each year but grants and hears oral arguments in only about 75 to 80 cases, according to its website.

Justices previously refused to hear Arizona’s case for its 20-week abortion ban in 2014. North Dakota lawmakers also passed a 20-week ban in 2013, but the center didn’t challenge it because the Fargo clinic only performs abortions up to 16 weeks of pregnancy.

In November, the Supreme Court agreed to review a Texas law that requires abortion clinic doctors to have admitting privileges at a local hospital. Its ruling, which is expected by the end of this year, could affect a similar law in North Dakota, Stenehjem has said.