In an apparently undeclared contest over which state can pass the most extreme anti-abortion law, North Dakota last week took the lead over Arkansas by approving a new bill to ban abortions after a fetal pulse has been detected. The state legislature, dominated by Republican super-majorities (71 to 23 in the House and 33 to 14 in the Senate), also passed a bill banning abortions sought because of a genetic abnormality or to select the sex of the child. No other state bans abortions for genetic defects, and only three—Arizona, Pennsylvania and Oklahoma—have laws barring abortions for the purpose of sex selection.

Although the Arkansas bill bans abortion after external detection of a pulse via abdominal ultrasound, which is generally possible at about 12 weeks of gestation, the North Dakota measure bans abortion after a pulse is “detectable” using “standard medical practice,” which could include intrusive transvaginal ultrasound, a procedure capable of detecting a pulse as early as 6 weeks of gestation.

The law makes exceptions for abortions necessary to save the life of the mother or to prevent severe medical emergencies, but not in cases of rape or incest. Doctors who knowingly perform abortions that violate the bill could face felony charges carrying a five-year sentence, but patients would face no criminal penalties.

North Dakota Governor Jack Dalrymple, a Republican, has not yet signed the bills, although he is expected to do so. North Dakota has only one clinic performing about 1,200 abortions a year, more than 75% of which could be outlawed under the new bills, according to Elizabeth Nash of the Guttmacher Institute, a group that researches sexual and reproductive health.

Under the landmark Supreme Court case of Roe v. Wade, women have a right to choose to terminate a pregnancy until the fetus is viable outside the womb, generally around 24 weeks of gestation. As a result, even if both bills are signed, pro-choice groups vow to challenge them in federal court, where they will be overturned. Although a protracted legal battle all the way to the Supreme Court—the only body with the power to overturn Roe—would be costly for North Dakota, its ongoing oil boom has produced a large budget surplus legislators are willing to spend on this cause.

Reaction from pro-choice groups was unsurprising. “We urge the governor to veto all of these bills to ensure that this personal and private decision can be made by a woman and her family, not politicians sitting in the Capitol,” said Jennifer Dalven, director of the ACLU Reproductive Freedom Project.

The early abortion ban was sponsored by Rep. Bette Grande (R-Fargo), who claimed on her blog recently that “A heartbeat is accepted by everyone as a sign of life,” despite the fact that modern science prefers to focus on a web of processes, including reproduction, metabolism and homeostasis, in defining life.

Meanwhile, in the state of New York, Democratic Gov. Andrew Cuomo recently proposed a set of reforms easing restrictions on abortions needed for the health of the mother and moving the regulation of abortion out of the criminal code and into the public health law.

-Matt Bewig

To Learn More:

Bill in North Dakota Bans Abortion After Heartbeat Is Found (by Eric Eckhom, New York Times)

North Dakota Senate Approves 6-Week Abortion Ban (by James MacPherson, Time)

Arkansas Set to Impose Nation’s Most Restrictive Abortion Law (by Noel Brinkerhoff, AllGov)