Case challenging a new law in North Dakota that imposes confusing new restrictions on the provision of abortions.
Filing Date: July 2009
State: North Dakota
Plaintiff(s): MKB Management Corp., d/b/a Red River Women’s Clinic
Center Attorney(s): Suzanne Stolz, Janet Crepps, Michelle Movahed
Co-Counsel/Cooperating Attorneys: Joseph Turman, DeMars &, Turman LTD (local counsel)
Summary: In July of 2009, the Center, on behalf of the only abortion provider in North Dakota, challenged a new law that imposes confusing new restrictions on the provision of abortions.
The law requires abortion providers to offer every woman seeking an abortion the opportunity to receive and view an active ultrasound at least 24-hours prior to the abortion. It also contains a provision which states that “[t]he auscultation of the fetal heart tone must be of a quality consistent with standard medical practice in the community.” Although MKB Management, doing business as the Red River Women’s Clinic, performs an ultrasound prior to every abortion, auscultation (or listening to the fetal heartbeat) is rarely, if ever done as part of abortion services. Auscultation of the fetal heartbeat is not considered the standard of care for abortion services.
The Center filed a challenge on July 15, 2009 in North Dakota state court, alleging that the law violated both the North Dakota and federal constitutions. The Center claimed that the auscultation provision was impermissibly vague because it was not clear whether it required the Clinic to offer or to provide auscultation of fetal heart tones in conjunction with every ultrasound examination and provided no guidance as to what constitutes “standard medical practice within the community.” The law also imposes criminal penalties on both the Clinic and its physicians for violating the provision, even if they attempted to comply in good faith.
The Center filed a motion asking for a temporary injunction to prevent the law from being enforced before the court had an opportunity to decide its constitutionality. On August 11, the court issued an opinion clarifying the meaning of auscultation provision and declaring that it only required the Clinic to provide “information as to auscultation services … if available within the community.” After interpreting the auscultation provision as not requiring the Clinic to offer or provide auscultation of the fetal heart tones, the court denied the motion for a temporary injunction and found the law constitutional.
On September 25, 2009, at the request of all the parties, final judgment was entered incorporating the court’s interpretation of the law. Abortion facilities must inform women, at least 24 hours prior to an abortion, that auscultation services may be available. The judgment also provides that abortion facilities are not required to provide or have the equipment to provide auscultation of the fetal heart tone and are not required to ensure that their patients actually receive auscultation services