North Dakota abortion, disability law may go to the Supreme Court

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The U.S. Court of Appeals for the 8th Circuit struck down North Dakota’s strictest-in-the-nation abortion law July 22, opening the door for potential review by the Supreme Court.

Nationwide, almost all of the attention has focused on the bill’s ban on abortions after six weeks, which is when fetuses generally first possess a detectable heartbeat. As explained in the Eighth Circuit’s decision, this provision directly contradicts Supreme Court precedent, which legalizes abortion up to the point of viability, which is generally 24 weeks into the pregnancy.

However, the bill in question, H.B. 1456, also contains a provision that bans abortions on the basis of “fetal abnormalities.” The measure, which passed in 2013, made the state the first in the nation to enact a disability discrimination provision into its state abortion law.

There have been no prosecutions under the law thus far, according to the New York Times.

The 8th Circuit’s 14-page decision [PDF] contains no discussion of the legality of the “fetal abnormalities” provision, but makes clear that it struck down the entire bill.

Despite the enactment of hundreds of new abortion restrictions, the Supreme Court has not taken up a major abortion decision since 2007, when it banned so-called “partial birth abortion.” Despite this decision, five of the nine justice have taken positions in previous decisions indicating their support for Roe v. Wade, the Court’s seminal 1973 decision legalizing abortion pre-viability, as well as for fetuses post viability where the woman’s life or health are in danger.