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Abortion restrictions failing this year in court challenges

Andrew Harris

Bloomberg News

Published: Tuesday, Aug. 20 2013 12:15 p.m. MDT

"If you look, you will see a lot of the legislation that's pending," based on the models, Goldberg said in a phone interview. "It's not as if the people in North Dakota woke up one day and said, 'We have a real problem with the admitting privileges.'"

Her organization, the American Civil Liberties Union and Planned Parenthood, have led the legal opposition to laws targeting abortion.

Laws resembling Americans United for Life's proposal to require doctors performing abortions to have admitting privileges at hospitals within 30 miles of their facilities passed in Mississippi and North Dakota.

Those laws were temporarily blocked by judges who found they likely burdened a woman's right in states where doctors would be unable to obtain the privileges and sole clinics would be forced to close.

Similar laws now blocked would have shuttered three of five clinics in Alabama and in Wisconsin would have closed two of four and curtailed services at a third.

Proponents of North Dakota's law argued it was needed to guarantee emergency care for abortion patients. It would have closed the Red River Women's Clinic in Fargo.

State Judge Wickham Corwin said abortions performed there are "extremely safe and effective" pre-viability procedures, making the statute unnecessary.

In his July 31 decision, the judge also said the law posed an undue burden on women and that it ran afoul of the Supreme Court's "Casey" decision.

Of the three hospitals within the specified 30-mile radius of the Red River clinic, Corwin said, one is affiliated with the Catholic Church and can't be involved with abortions; the second — a U.S. veterans' hospital — is barred from doing them by federal law; and the third has an annual minimum patient- admission requirement for a doctor's affiliation.

"The legislature has shown open disdain for the rights clearly protected by the federal Constitution," Corwin wrote.

Two hundred miles to the west in Bismarck on July 22, Hovland, the federal judge, was similarly critical in calling the fetal-heartbeat law a "blatant violation" of women's rights.

Upon signing that measure into law in March, Republican Gov. Jack Dalrymple acknowledged its uncertain future by saying its chance of surviving a court challenge was "in question." He called it "a legitimate attempt by a state legislature to discover the boundaries of Roe v. Wade."

"The courts are incredibly important stopgaps, but nobody should be sanguine to think the courts are the solution to this," Louise Melling, the ACLU's deputy legal director, said in a telephone interview, adding that resistance is needed in the state legislatures.

"It's important that people realize the impact of these restrictions is real," Melling said. The New York-based group earlier this year launched a web page, dedicated to the proposition that the abortion rights issue is a women's issue.

An adjacent page states that more than 300 abortion- restrictive laws have been introduced by state legislators this year.

Steven R. Morrison, a constitutional-law professor at the University of North Dakota in Grand Forks, said some lawmakers don't understand the constitutional implications of their work.

"They truly believe abortion is murder," Morrison said. "Why wouldn't you pass a law that prohibits it? But we don't live in a theocracy, we live in a democracy, and they're ignoring the case law as it stands."

Even a futile attempt to curb abortion has moral, political and legal value, said Donald P. Judges, a University of Arkansas law professor.

"For some it's to make a point to their constituents or perceived constituents," said Judges, the author of "Hard Choices Lost Voices: How the Abortion Conflict Had Divided America, Distorted Constitutional Rights, and Damaged the Courts."

In his state, a measure curbing abortions at the 12th week of pregnancy was passed this year by the legislature over Governor Mike Beebe's veto. Then it was blocked in court by U.S. District Judge Susan Webber Wright.

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