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Protesters and patient escorts stand outside of North Dakota's only abortion provider, the Red River Women's Clinic in downtown Fargo, on Wednesday, May 15. David Samson / The Forum

North Dakota no stranger to pushing limits of Roe v. Wade

FARGO — Six years ago, North Dakota tested the boundaries of Roe v. Wade by passing a law that would ban abortions if a heartbeat could be detected — the first of its kind in the country.

The law was overturned in federal court, but that has not stopped other states from passing similar or more restrictive legislation. On Wednesday, May 15, Alabama Gov. Kay Ivey signed a bill making it illegal for doctors to perform abortions with few exceptions, including when a mother’s health would be at serious risk, and Georgia Gov. Brian Kemp signed a heartbeat bill last week similar to North Dakota’s.

There are many North Dakotans who would like to see a challenge to Roe v. Wade, the landmark Supreme Court decision that made it unconstitutional to ban abortions, said Robert Wood, a University of North Dakota political science professor.

The state laws passed recently would have to be challenged and make their way up through the courts, which could take years. However, a more conservative Supreme Court likely is driving hope that Roe v. Wade could be overturned, prompting states to test the theory by passing restrictive abortion laws, Wood said.

“There’s been a movement growing for a long time, and they have always been blocked by Roe v. Wade,” he said. “I think what you’re seeing is a renewed vigor because we’ve seen the balance of power on the Supreme Court shift.”

The news of Alabama’s bill was welcomed by Thomas Reagan and his son, Benjamin, who stood quietly Wednesday morning, May 15, on the sidewalk outside the Red River Women’s Clinic in Fargo. They try to come as often as possible to join a group that protests once a week at North Dakota’s lone clinic that offers abortions.

“I think we are going in the right direction anytime human life is protected,” said Thomas Reagan, of rural Wahpeton. “I think North Dakota has done a good job at that.”

Amy Jacobson, state director for Planned Parenthood in North Dakota, was shocked by Alabama's legislation, saying it is “one of the most extreme bills we’ve ever seen.”

“It is quite frightening to see this very extreme and aggressive movement in some of the state legislatures,” she said, adding that most Americans and North Dakotans don’t support criminalizing abortion for extreme cases like rape or incest.

North Dakota is no stranger to anti-abortion legislation. In 2013, then-Gov. Jack Dalrymple signed the heartbeat bill, calling it “a legitimate attempt by a state legislature to discover the boundaries of Roe v. Wade.”

The Supreme Court refused in 2016 to hear an appeal by North Dakota Attorney General Wayne Stenehjem to overturn the U.S. 8th Circuit Court of Appeals opinion saying the state's law was unconstitutional. The state had to pay $245,000 to the Red River Women’s Clinic and accumulated $325,948 in legal costs.

By a two-thirds majority, North Dakotans also voted down a measure that would have added language to the state constitution protecting life at any stage of development.

This year, the state Legislature passed bills making it illegal to perform a “dismemberment abortion” in the second trimester. That is contingent on an amendment to the U.S. Constitution or an upper court ruling that returns the power to decide the legality of abortion to the states.

Another bill passed requires clinics to provide information that drug-induced abortions can be reversed. Though, there is no scientific evidence to back the claim, said Ann Burnett, director of women and gender studies at North Dakota State University.

States have been chipping away at Roe v. Wade bit by bit, but Burnett called Alabama’s bill a big step that likely would be found unconstitutional.

Even if it is upheld, it wouldn’t prevent abortions, she said. Research shows women seeking abortions likely would go to another state or have them performed illegally in dangerous settings, she said.

Thomas Reagan said a person's right to choice should be respected but not at the expense of another person’s rights. “The child should have the choice to live,” he said.

The movement for anti-abortion legislation may have been triggered by some states passing legislation to guarantee abortion rights, said Medora Nagle, executive director for North Dakota Right to Life.

“Any and all pro-life legislation is going to help us as a country — state by state or as a whole,” she said. “I don’t really think Roe v. Wade will be overturned anytime in the near future, so I think right now we have to do what we can in our own individual states.”

Jacobson said she believes states will continue to pass restrictive abortion laws. "But ultimately voters are going to be the ones who are going to be unseating those legislators and changing the tone of our legislative makeup so we are no longer so hostile toward women,” she said.