North Dakota is taking on Roe v. Wade. How? Through limiting the rights of its citizens. This week, the state and its ultra-conservative governor decided to purposefully test the boundaries of Roe v. Wade by passing the most restrictive abortion laws in the United States with the intent of having a showdown against abortion laws in the nation’s highest court, despite the fact that all evidence points to the challenge being unsuccessful.
Let’s — for a moment — ignore what this law will do, and focus on it’s intent. The governor has admitted that the law probably will not stand up in court, but that his hope is that this will go as far as the Supreme Court so that the state can challenge Roe v. Wade.
"Although the likelihood of this measure surviving a court challenge remains in question, this bill is nevertheless a legitimate attempt by a state legislature to discover the boundaries of Roe v. Wade," Governor Jack Dalrymple said in a statement. "Because the U.S. Supreme Court has allowed state restrictions on the performing of abortions and because the Supreme Court has never considered this precise restriction in HB 1456, the constitutionality of this measure is an open question."
Problem number one is that there is absolutely no evidence the Supreme Court will hear this case, and if they do, that they will overturn it. Dalrymple’s interpretation of what the court has allowed in the past is a stretch at best. The court has previously ruled that abortions are illegal once the fetus can survive outside the womb — the North Dakota law rolls that back to as soon as there is a detectible heartbeat, which may be as early as six weeks. A fetus can’t survive outside of the womb until 24 weeks. Other limitations on abortions have involved where funding comes from, which doesn’t relate at all to the restrictions North Dakota has placed on the procedure.
Additionally, the original case was decided 7-2 — even many of the conservative justices on the court ruled in favor of abortion rights. There is no evidence that the current court, which is split ideologically down the middle, would overturn such a heavily weighted decision. In fact, I would argue that this court is more likely to uphold it. In 1971, there were no women on the Supreme Court — now there are three. If a court of all men can decide in favor of abortion rights, a court with three women (all of whom lean left) will be much more likely to uphold the law.
Problem number two is that — assuming that this does make it to the Supreme Court and doesn’t just get stuck at the federal level — the majority of Americans have no desire to see Roe v. Wade overturned at all. While you might assume, given the landslide of conservative states limiting abortion rights, that the nation is slowly moving towards the right on the issue, that’s not true at all. A poll recently conducted by NBC News and the Wall Street Journal indicated that 70% of Americans oppose overturning Roe v. Wade.
Problem number three is that it costs hundreds of thousands of dollars to take something all the way to the Supreme Court. While there are several organizations have that offered to cover the state’s legal costs, the governor seems to be ignoring all of this and has instructed the legislature to put aside money for a legal fund. I realize that North Dakota’s economy is booming right now, but shouldn’t they have better things to spend all that money on than a court case that will ultimately fail?
While the state mounts a campaign to overturn Roe v. Wade that will ultimately be unsuccessful, they are restricting the legally protected rights of thousands of women in North Dakota and setting a troubling precedent for other states who also seek to limit these rights.