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ND abortion clinic files federal legal challenge

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JAMES MacPHERSON | June 25, 2013 05:40 PM EST | AP

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BISMARCK, N.D. — North Dakota's lone abortion clinic filed a federal lawsuit Tuesday seeking to block the nation's toughest abortion restrictions from taking effect, expanding on a separate challenge it raised last month in state court.

The Fargo clinic, backed by the New York-based Center for Reproductive Rights, filed the lawsuit in Bismarck federal court that challenges a law banning abortions as early as six weeks into a pregnancy, when a fetal heartbeat can first be detected. The lawsuit also is challenging another new measure that would make North Dakota the only state to prohibit women from having the procedure because a fetus has a genetic defect, such as Down syndrome.

"These laws are blatantly unconstitutional," Janet Crepps, an attorney for the Center for Reproductive Rights, told The Associated Press. "In effect, they would deny virtually all women access to abortion in North Dakota."

The two North Dakota measures are among four Republican Gov. Jack Dalrymple signed into law this year with overwhelming support by the state's Republican-led Legislature.

Jeff Zent, a spokesman for Dalrymple, said it's the governor's "standing policy not to comment on litigation."

A third measure passed by the Legislature this year would outlaw abortions after 20 weeks of pregnancy based on the disputed premise that a fetus can by then feel pain. Another measure would require a doctor who performs abortions to be a physician with hospital-admitting privileges.

The four laws are slated to take effect Aug. 1.

Crepps said she is seeking a preliminary injunction only to block the so-called fetal heartbeat law.

"If it takes effect, 90 percent of abortions would be completely banned and threaten the ability of the clinic to remain open," she said.

While several conservative states have enacted tougher abortion laws in recent months, North Dakota, with its push to outlaw abortions as early as six weeks into pregnancy and before some women know they are pregnant, "absolutely is the most extreme in the nation."

Abortion-rights advocates say the measures are an attempt to close the Red River Women's Clinic in Fargo. Supporters of the so-called fetal heartbeat measure, including Dalrymple, have said it's a challenge the U.S. Supreme Court's 1973 Roe v. Wade ruling that legalized abortion up until a fetus is considered viable, usually at 22 to 24 weeks.

In signing the bills, Dalrymple urged the Legislature to set aside money for a "litigation fund" that would allow the state's attorney general to defend the measures against lawsuits. North Dakota Attorney North Dakota requested – and received – $400,000 for the legal fight promised by abortion-rights activists.

Stenehjem did not immediately return telephone calls Tuesday seeking comment on the new litigation.

The Center for Reproductive Rights last week was successful in its attempt to combine the 2013 lawsuit that challenges a new requirement for doctors who perform abortions to obtain hospital-admitting privileges with litigation over a 2011 law that limits the use of drugs to terminate pregnancies.

East Central Judge Wickham Corwin in April said he would rule in favor of the abortion clinic in its challenge of the law limiting abortion-inducing drugs. Corwin, who had already granted an injunction preventing the law from taking effect, called that legislation "simply wrongheaded."

Attorneys for the clinic said the 2013 law raises the same "legal and factual matters" as the 2011 legislation. State attorneys have argued that the cases are "separate and distinct" and said they would defend both laws before the North Dakota Supreme Court.

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