-- Rival legal teams, well-financed and highly motivated, are girding for court battles over the coming months on laws enacted in Arkansas and North Dakota that would impose the nation's toughest bans on abortion.
For all their differences, attorneys for the two states and the abortion-rights supporters opposing them agree on this: The laws represent an unprecedented frontal assault on the Supreme Court's 1973 Roe v. Wade decision that established a nationwide right to abortion.
The Arkansas law, approved March 6 when legislators overrode a veto by Democratic Gov. Mike Beebe, would ban most abortions from the 12th week of pregnancy onward. On March 26, North Dakota went further, with Republican Gov. Jack Dalrymple signing a measure that would ban abortions as early as six weeks into a pregnancy, when a fetal heartbeat can first be detected and before some women even know they're pregnant.
Abortion-rights advocates plan to challenge both measures, contending they are unconstitutional violations of the Roe ruling that legalized abortion until a fetus could viably survive outside the womb. A fetus is generally considered viable at 22 to 24 weeks.
"I think they're going to be blocked immediately by the courts – they are so far outside the clear bounds of what the Supreme Court has said for 40 years," said Nancy Northup, president of the Center for Reproductive Rights.
The center will be leading the North Dakota legal challenge and working in Arkansas alongside the American Civil Liberties Union's state and national offices. Both Northup and ACLU lawyers say they have ample resources to wage the battles, and they expect victories that would require their attorneys' fees to be paid by two states.
Dalrymple, in signing the ban, acknowledged that its chances of surviving a court challenge were questionable, but said it was worth the eventual price tag – at this point unknown – in order to test the boundaries of Roe.
North Dakota's attorney general, Wayne Stenehjem, initially said lawyers from his office would defend any lawsuits but is now considering hiring outside help. His office is working on a cost estimate for the litigation that could be presented to lawmakers soon.
"We're looking at a sufficient amount to adequately defend these enactments," Stenehjem said.
A lead sponsor of the Arkansas ban, Republican state Sen. Jason Rapert, said threats of lawsuits "should not prevent someone from doing what is right."
He contended that the ban had a chance of reaching the U.S. Supreme Court through the appeals process and suggested that the victory predictions made by abortion-rights lawyers amounted to "posturing" aimed at deterring other states from enacting similar bans.
In both Arkansas and North Dakota, the states' lawyers will be getting pro bono assistance from lawyers with Liberty Counsel, a conservative Christian legal group.
Mathew Staver, the group's chairman, said supporters of the bans were resolved to fight the legal battles to the end, and issued a caution to the rival side.
"They ought to hold off on their celebrations," he said. "The cases have a long way to go through the court system."
The North Dakota ban is scheduled to take effect Aug. 1, along with two other measures that have angered abortion-rights backers. One would require abortion providers to have admitting privileges at a local hospital, the other would make North Dakota the first state to ban abortions based on genetic defects such as Down syndrome.
The Center for Reproductive Rights is reviewing its options regarding the latter two bills, but definitely plans to challenge the 6-week ban before Aug. 1. Northup said her team is pondering whether to file suit in state court or U.S. district court.
In Arkansas, where the 12-week ban would take effect 90 days after the end of the legislative session, abortion-rights lawyers plan to file their challenge in federal court within the next few weeks.
Bettina Brownstein, who will be representing the ACLU of Arkansas in the case, said the U.S. district court with jurisdiction over Little Rock had issued rulings in past abortion-related cases that gave her confidence of victory this time.
"Eventually it could go to U.S. Supreme Court on appeal, but that would take a while, and they may not want to hear it," she said. "It's a question of how much money the state wants to spend."
Northup chided officials in both Arkansas and North Dakota for their willingness to spend taxpayers' money on difficult and divisive legal cases.
"It's important that the citizens of those states realize that every dollar spent to defend blatantly unconstitutional laws is taxpayers' dollars wasted," she said.
Attorneys' fees for the upcoming cases are impossible to estimate at this stage, but Northup said her organization received $1.3 million in fees from Alaska after that state lost a recent case regarding an abortion-related law.
The last few years have been intensely busy for the Center for Reproductive Rights, the ACLU and other abortion-rights legal groups as Republican-controlled legislatures have enacted scores of laws seeking to restrict access to abortion. At least two dozen such measures are currently the target of lawsuits, said Northup, who vowed that her organization "will not let unconstitutional laws go unchallenged."
Some of the recent laws place new requirements on abortion clinics, others require abortion providers to perform certain procedures or offer state-mandated counseling before an abortion can take place.
At least 10 states have passed bills banning abortions after 20 weeks of pregnancy on the disputed premise that a fetus can feel pain at that stage. One of those laws, in Idaho, was struck down by a U.S. district judge on March 6, while the laws in Georgia and Arizona have been temporarily blocked by judges pending further court proceedings.
Abortion-rights advocates, while eager to defeat the new bans in North Dakota and Arkansas, worry about the impact of the broader surge of restrictions.
"I don't believe these bans are going to take effect, but the danger is that they make the other laws look reasonable," said Talcott Camp, deputy director of the ACLU's Reproductive Freedom Project. "The ultimate goal is to take this decision away from a woman and her doctor and give it to the politicians."
One of the most frequent targets of the anti-abortion laws is the Planned Parenthood Federation of America, which – in addition to providing a range of other health services – is the nation's leading provider of abortions.
Planned Parenthood's president, Cecile Richards, said she found it frustrating that women "continue to be a political punching bag." But she saw an upside to the wave of anti-abortion legislation: more members and more donations for her organization.
"These attacks have served to energize our supporters," she said. "We've gained 2 million members in the past two years."
There's new energy on the other side as well.
The tough North Dakota laws have been welcomed by the protesters who gather weekly in Fargo outside the state's lone abortion clinic.
Among those on hand for the latest protest at the Red River Women's Clinic was Scott Carew, 50, who had brought two anti-abortion posters nailed to pieces of wood.
"Certainly, we're proud of the governor standing up for life," Carew said. "We're going to keep standing up for life until we can't stand up anymore."
Associated Press reporters James MacPherson in Bismarck, N.D., David Kolpack in Fargo, N.D., and Andrew DeMillo in Little Rock, Ark., contributed to this report.
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Also on HuffPost:
Birth Control Causes Prostate Cancer
Earlier this year, a New Hampshire lawmaker came up with a new reason the government should not require health insurance companies to provide contraception. "As a man, would it interest you to know that Dr. Brownstein just published an article that links the pill to prostate cancer?" state Rep. Jeanine Notter (R) asked a male representative at the hearing, the <a href="http://merrimack.patch.com/articles/merrimack-rep-claims-the-pill-has-been-linked-to-prostate-cancer" target="_hplink">Merrimack Patch reports</a>. "In the children that are born from these women?" he asked. Notter could not clearly explain the study or how the pill results in prostate cancer. The study described in <a href="http://www.newsmaxhealth.com/dr_brownstein/Prostate_Cancer_The_Pill/2012/02/06/432113.html" target="_hplink">the newsletter of Dr. David Brownstein, a physician and holistic practitioner in Michigan,</a> suggests men may ingest estrogen through environmental contamination, not in utero from mothers taking birth control. An author of the study <a href="http://abcnews.go.com/blogs/health/2011/11/15/study-link-between-birth-control-pills-and-prostate-cancer/" target="_hplink">told ABC News</a>, "This is just a hypothesis-generating idea. Women should not be throwing away the pill because of this."
Abortion Causes Breast Cancer
The New Hampshire House in 2012 <a href="http://www.huffingtonpost.com/2012/03/14/abortion-breast-cancer-new-hampshire-_n_1345771.html" target="_hplink">passed a bill </a>that would require doctors to tell women seeking abortions that the procedure can cause breast cancer. Here is an excerpt from the bill, sponsored by Notter: <blockquote>Materials that inform the pregnant woman that there is a direct link between abortion and breast cancer. It is scientifically undisputed that full-term pregnancy reduces a woman's lifetime risk of breast cancer. It is also undisputed that the earlier a woman has a first full-term pregnancy, the lower her risk of breast cancer becomes, because following a full-term pregnancy the breast tissue exposed to estrogen through the menstrual cycle is more mature and cancer resistant. In fact, for each year that a woman's first full-term pregnancy is delayed, her risk of breast cancer rises 3.5 percent. The theory that there is a direct link between abortion and breast cancer builds upon this undisputed foundation. During the first and second trimesters of pregnancy the breasts develop merely by duplicating immature tissues. Once a woman passes the thirty-second week of pregnancy (third trimester), the immature cells develop into mature cancer resistant cells. When an abortion ends a normal pregnancy, the woman is left with more immature breast tissue than she had before she was pregnant. </blockquote> There is <a href="http://www.cancer.org/Cancer/BreastCancer/MoreInformation/is-abortion-linked-to-breast-cancer" target="_hplink">no link between abortions and breast cancer</a>, according to the World Health Organization, the American Cancer Society and other major health organizations. Similar provisions requiring doctors to make the abortion-breast cancer connection remain on the books in other state laws. Alaska, Kansas, Mississippi, Oklahoma, Texas all inaccurately assert a risk in written counseling materials, according to the <a href="http://www.guttmacher.org/statecenter/spibs/spib_MWPA.pdf" target="_hplink">Guttmacher Institute</a>, a New York-based reproductive health research organization.
Birth Control Is A Sex Pill
Rush Limbaugh showed he has no understanding of how birth control pills work when he attacked Sandra Fluke, a Georgetown law student barred from testifying as a Democratic witness at a congressional hearing about the Obama administration's contraception policy. Limbaugh <a href="http://www.huffingtonpost.com/2012/02/29/rush-limbaugh-sandra-fluke-slut_n_1311640.html" target="_hplink">called Fluke a "slut"</a> for needing lots of birth control to manage her sex life. "She wants to be paid to have sex," Limbaugh said. "She's having so much sex she can't afford the contraception. She wants you and me and the taxpayers to pay her to have sex." Rick Santorum has also said that contraception encourages a bad kind of sex. Last year, in an interview with the Evangelical blog Caffeinated Thoughts, <a href="http://swampland.time.com/2012/02/14/rick-santorum-wants-to-fight-the-dangers-of-contraception/" target="_hplink">Santorum warned of the "dangers of contraception:"</a> <blockquote>"It's not OK because it's a license to do things in the sexual realm that is counter to how things are supposed to be. They're supposed to be within marriage, they are supposed to be for purposes that are, yes, conjugal, but also [inaudible], but also procreative. That's the perfect way that a sexual union should happen. We take any part of that out, we diminish the act."</blockquote> <a href="http://www.huffingtonpost.com/michael-b-keegan/gop-obama-birth-control_b_1281808.html" target="_hplink">Most women who have had sex have used contraception</a>. Birth control pills -- which are taken daily, regardless of how frequently a woman has sex -- may also be taken to manage endometriosis, ovarian cysts, acne or other health problems. A <a href="http://www.huffingtonpost.com/2012/03/14/arizona-birth-control-bill-contraception-medical-reasons_n_1344557.html" target="_hplink">bill in Arizona proposed penalizing women who use the pill for non-medical reasons</a>.
Abortion Industry Is 'Selling Abortions'
A Republican state legislator in Arizona <a href="http://www.huffingtonpost.com/2012/03/20/abortion-bill-arizona-terri-proud-witness-email_n_1368386.html" target="_hplink">wrote in an email to a constituent</a> earlier this year that she wanted to force women seeking abortions to watch the procedure first. "Personally I'd like to make a law that mandates a woman watch an abortion being performed prior to having a 'surgical procedure,'" state Rep. Terri Proud (R) wrote. The constituent responded by email that she was "speechless" and after <a href="http://www.huffingtonpost.com/2012/03/23/abortion-bill-abortion-constituent-email-watching-abortion_n_1376389.html?ref=politics" target="_hplink">a baffling exchange with Proud</a>, released the emails to the media. Facing national outrage, Proud<a href="http://www.huffingtonpost.com/2012/03/21/terri-proud-arizona-legislator-abortion_n_1371213.html" target="_hplink"> issued a statement</a>: <blockquote>For too long, Planned Parenthood and the abortion industry have placed selling abortions above the health and safety of women. My message to a constituent last week emphasized my concerns with how abortion providers have not been honest with women about the realities of abortion, and the short and long-term risks of this dangerous surgical procedure.</blockquote> The notion that Planned Parenthood <a href="http://www.whyprolife.com/the-abortion-industry-they-believe-in-getting-children-young/" target="_hplink">baits women into unwanted pregnancies by providing ineffective contraception</a> then profits off the abortions is nothing new, but it's as outrageous as it sounds. Abortions constitute <a href="http://www.plannedparenthood.org/about-us/who-we-are/planned-parenthood-glance-5552.htm" target="_hplink">3 percent</a> of Planned Parenthood's services, and the organization estimates it <a href="http://www.washingtonpost.com/blogs/ezra-klein/post/what-planned-parenthood-actually-does/2011/04/06/AFhBPa2C_blog.html" target="_hplink">prevents more than 220,000 abortions each year</a> by providing contraception. Because Planned Parenthood is <a href="http://www.huffingtonpost.com/2011/04/08/title-x-headline_n_846852.html" target="_hplink">not allowed to use federal funds for abortions</a>, defunding the program may limit contraception services and result in more abortions.
Women Can't Get Pregnant From Rape
Just before Idaho's Senate withdrew a mandatory ultrasound bill in March, a Republican bill sponsor <a href="http://www.huffingtonpost.com/2012/03/20/chuck-winder-rape-abortions_n_1366994.html" target="_hplink">made some startling comments about abortion and rape</a>. "Rape and incest was used as a reason to oppose this," said state Sen. Chuck Winder (R). "I would hope that when a woman goes in to a physician with a rape issue, that physician will indeed ask her about perhaps her marriage, was this pregnancy caused by normal relations in a marriage or was it truly caused by a rape. I assume that's part of the counseling that goes on." It wasn't the first time a lawmaker has suggested that women seeking abortions may lie about rape. Some anti-abortion activists actually believe that rape cannot result in pregnancy. <a href="http://www.buzzfeed.com/annanorth/the-6-craziest-things-people-have-said-about-pregn" target="_hplink">Buzzfeed dug up a series of bizarre statements </a>Republicans have made about pregnancy, rape, juices not flowing and more. Here's one: <blockquote>The odds that a woman who is raped will get pregnant are "one in millions and millions and millions," said state Rep. Stephen Freind, R-Delaware County, the Legislature's leading abortion foe.<br> The reason, Freind said, is that the traumatic experience of rape causes a woman to "secrete a certain secretion" that tends to kill sperm.<br> Two Philadelphia doctors specializing in human reproduction characterized Freind's contention as scientifically baseless.</blockquote> <a href="http://www.plannedparenthood.org/health-topics/ask-dr-cullins/cullins-preg-5291.htm" target="_hplink">According to Planned Parenthood</a>, about 5 percent of rapes result in pregnancy, and providing all rape victims with emergency contraception could prevent more than 22,000 unwanted pregnancies a year. <em><strong>Correction:</strong> A previous version of this text misstated the status of Idaho's mandatory ultrasound bill legislation. Lawmakers ultimately decided to table the measure.</em>
Prenatal Testing Leads To Abortion
Former GOP presidential candidate Rick Santorum made prenatal testing a campaign issue in February when <a href="http://www.huffingtonpost.com/2012/02/22/rick-santorum-prenatal-testing_n_1293153.html#s584044&title=On_Contraception" target="_hplink">he declared</a> the tests are designed to "cull the ranks of the disabled in our society" by encouraging abortions. "Amniocentesis does, in fact, result more often than not in this country in abortions," <a href="http://www.washingtonpost.com/blogs/election-2012/post/rick-santorum-prenatal-testing-encourages-abortions/2012/02/19/gIQAvmZeNR_blog.html" target="_hplink">Santorum, who has a severely disabled daughter, said on "Face the Nation."</a> "That is a fact." In fact, more than 90 percent of amniocenteses tests result in normal diagnoses, and half of fetuses diagnosed with severe abnormalities -- about 5 percent of those tested -- are aborted, <a href="http://www.politifact.com/truth-o-meter/statements/2012/feb/27/rick-santorum/rick-santorum-says-amniocentesis-does-fact-result-/" target="_hplink">according to PolitiFact</a>. A campaign spokeswoman for Obama <a href="http://www.huffingtonpost.com/2012/02/22/rick-santorum-prenatal-testing_n_1293153.html#s584044&title=On_Contraception" target="_hplink">condemned Santorum's comments</a> as "misinformed and dangerous" and pointed out that the tests help women have safer deliveries and healthier babies.
HPV Vaccine Causes Retardation
Back when Rick Perry was campaigning for president, <a href="http://www.huffingtonpost.com/2011/09/13/rick-perry-hpv-vaccine_n_961159.html" target="_hplink">his rivals attacked him</a> for signing an executive order mandating the human papillomavirus vaccine for young girls, and misinformation quickly spread. Michele Bachmann <a href="http://www.huffingtonpost.com/2011/09/19/michele-bachmann-retardation-claim_n_970919.html" target="_hplink">insinuated that the vaccine causes mental retardation</a>, while Santorum spoke out against "having little girls inoculated at the force and compulsion of the government." The vaccine is safe and effective in preventing cervical cancer caused by certain strains of HPV, and Perry's 2007 executive order, which was overturned by the state legislature, would have allowed parents to opt out of having their daughters vaccinated. Dr. Renata Arrington-Sanders, a professor at Johns Hopkins University medical school, <a href="http://www.huffingtonpost.com/2011/09/13/rick-perry-hpv-vaccine_n_961159.html" target="_hplink">told HuffPost's Laura Bassett</a>: <blockquote>"The HPV vaccine has been shown to be safe and well-tolerated based on multiple medical reports that have been submitted through government databases. It's unfortunate that this particular vaccine is surrounded by a lot of controversy just because it's been labeled as an STD-prevention vaccine. We have similar vaccines, such as one for hepatitis B, that are also used in a mandated approach and have shown very successful rates with prevention."</blockquote>
Plan B Causes Abortions
The debate over the Obama administration's contraception policy has yielded some puzzling claims about birth control and Plan B. House Speaker John Boehner (R-Ohio) <a href="http://www.lifenews.com/2012/02/08/boehner-pledges-congress-will-overturn-new-obama-mandate/" target="_hplink">addressed the House</a> in February, urging his colleagues to reverse Obama's mandate for health insurance coverage of "abortion-inducing drugs:" <blockquote>In recent days, Americans of every faith and political persuasion have mobilized in objection to a rule put forward by the Obama administration that constitutes an unambiguous attack on religious freedom in our country. This rule would require faith-based employers -- including Catholic charities, schools, universities, and hospitals -- to provide services they believe are immoral. Those services include sterilization, abortion-inducing drugs and devices, and contraception.</blockquote> Michele Bachmann called Plan B an abortion pill when she incorrectly criticized Obama for making the drug available over-the-counter -- an FDA recommendation the administration and Health and Human Services Secretary Kathleen Sebelius <a href="http://www.huffingtonpost.com/2011/12/08/obama-sebelius-morning-after-pill_n_1137014.html" target="_hplink">rejected last year</a>. "The president can put abortion pills for girls 8 years of age, 11 years of age, on the bubblegum aisle," <a href="http://www.huffingtonpost.com/2011/12/28/gop-candidates-personhood_n_1172082.html" target="_hplink">Bachmann said</a> at a "pro-life" town hall in December. Contraceptives, emergency or not, prevent pregnancy. They don't cause abortions. Plan B works in the same way and with the same ingredients as birth control pills, just at a higher dosage, and<a href="http://www.christianitytoday.com/ct/2006/august/31.44.html?start=2" target="_hplink"> does nothing to stop the development of a fetus</a>.
Your Fetus Is Just Fine
The Arizona Senate<a href="http://www.huffingtonpost.com/2012/03/09/wrongful-birth-bill-arizona-senate-abortion-bill_n_1335117.html" target="_hplink"> passed a bill</a> in March to protect doctors from "wrongful birth" lawsuits -- effectively allowing them to withhold information that may lead a patient to get an abortion. HuffPost's John Celock <a href="http://www.huffingtonpost.com/2012/02/06/kansas-anti-abortion-bill_n_1258185.html" target="_hplink">reports</a>: <blockquote>Sen. Nancy Barto (R-Phoenix) told the Claims Journal that she sponsored the law because she did not want claimants to blame a doctor for a baby born with disabilities. Under the provisions of her bill, a doctor could not be sued for medical malpractice if the doctor withholds information from a mother about a child's potential health issues that could influence her decision to have an abortion. In addition, a lawsuit could not be filed on the child's behalf regarding a disability.</blockquote> Kansas lawmakers <a href="http://www.huffingtonpost.com/2012/02/06/kansas-anti-abortion-bill_n_1258185.html" target="_hplink">have considered similar legislation</a>.