North Dakota Court Provides Clarity on Vague and Confusing Abortion Restriction

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(PRESS RELEASE) Today, a state court provided clarity on a vague and confusing abortion restriction recently passed in North Dakota, in effect allowing the state’s only abortion clinic to continue providing abortions without fear of being subjected to strict criminal liability. Just last month Red River Women’s Clinic in Fargo, represented by the Center for Reproductive Rights, filed suit against a confusing provision relating to auscultation of the fetal heart tone within an ultrasound requirement for abortions.

The law requires that a woman be offered the opportunity to receive and view an ultrasound 24 hours before she obtains an abortion.  The clinic already provides ultrasounds to all of its patients prior to performing an abortion however, and was only challenging the provision within the law requiring that the “auscultation of the fetal heart tone” be consistent with “standard medical practice in the community.” Auscultation is the technical term for listening to the fetal heartbeat. The statute did not make it clear how the clinic should comply with the auscultation requirement, including whether it must provide the service to every woman who accepted the offer to receive and view an ultrasound examination. In addition, there is no “standard medical practice” for the providing fetal heart tone auscultation in abortion services because it is rarely, if ever, done. As a result, the staff at Red River would either be forced to choose between stopping providing abortions altogether—in effect, denying women in the state access to abortion—or risking criminal prosecution to continue providing abortion services.

Today, District Judge Douglas Herman of the East Central Judicial District Court clarified the law however, ruling that the clinic must inform women seeking abortions that auscultation services might be available, but is not required to provide auscultation services.

“We are pleased that the court has provided clarity where there was none and removed the severe threat to women’s access to abortion that the unclear language of the law imposed,” said Suzanne Stolz, staff attorney for the U.S. Legal Program at the Center for Reproductive Rights and lead attorney on the case. “Now Red River will be able to continue providing safe, quality abortion services to the hundreds of women in North Dakota and surrounding states who seek reproductive healthcare there.”