The big headline arising from a decision handed down by a federal appeals court on Wednesday is that abortion rights in North Dakota are saved. The court struck down the most stringent abortion ban in the nation — a restriction so stringent that significant numbers of pregnant women would find it impossible to exercise their right to choose in North Dakota if the provision had gone into effect.
Yet, while the three members of the United States Court of Appeals for the Eight Circuit that heard MKB Management Corp. v. Stenehjem — all of whom are George W. Bush-appointees — reluctantly concluded that existing Supreme Court precedent requires them to strike down the North Dakota law, they devoted the bulk of their opinion to an extended attack on what remains of Roe v. Wade. Indeed, much of the opinion does little more than repeat arguments commonly found in anti-abortion literature.
The opinion claims, for example, that “some studies support a connection between abortion and breast cancer,” even though this claim is rejected by many leading medical groups, including the American Cancer Society, the National Cancer Institute and the American College of Obstetricians and Gynecologists. It also quotes claims that “abortion is psychologically damaging to the mental and social health of significant numbers of women,” despite the fact that a literature review conducted by researchers at Johns Hopkins University determined that “[t]he best quality studies indicate no significant differences in long-term mental health between women in the United States who choose to terminate a pregnancy and those who do not.”
Similarly, the MKB Management opinion points to anecdotal examples of women who regretted their abortions — a tactic similar to one the Supreme Court deployed in a 2007 decision limiting the right to choose. Here, as well, empirical data cuts against the claim that this is a common occurrence. A recent study determined that “more than 95 percent of participants reported that ending a pregnancy was the right decision for them.”
But even if this percentage were higher, it’s unclear why the fact that a woman may regret exercising a legal right is relevant to the question of whether that right should exist. An individual who makes vulgar statements at work may come to regret the fact that they lose the respect of their colleagues, a husband who makes cruel statements to their wife may regret the fact that they’ve grown estranged from their partner, and a professional who makes ill-informed statements to a client may come to regret the loss of that client, but courts generally don’t believe that this possibility of regret is a reason to strip away the right to free speech.
Similarly, criminal suspects who exercise their right to remain silent during a police interrogation could later regret the fact that speaking openly to police would have led the officers to conclude that the suspect is innocent. And someone who exercises their right to quit a job may later regret that decision when they are unable to find a new source of income. The possibility of regret is inherent in every choice a human being makes. So if that possibility were, itself, a justification for stripping away legal rights, the only solution would be to take away all of our ability to make choices.
In any event, the Eighth Circuit’s begrudging decision to strike down North Dakota’s abortion law comes at a time when opponents of abortion may be more emboldened than they have been at any point since Roe. Mississippi lawmakers enacted a law that imposes such onerous requirements on abortion clinics that the law is expected to shut down the state’s only abortion clinic if it goes into effect. That law was struck down by a federal appeals court, but a petition asking the Supreme Court to hear this case is currently awaiting a decision by the justices. A similar law in Texas, that would shut down many clinics in that state, is also the subject of a petition seeking Supreme Court review. That law was upheld by a federal appeals court, but is currently being blocked by temporary stay handed down by a bare majority of the Supreme Court.
The North Dakota law, however, uses an especially aggressive tactic to restrict abortion rights. It makes it a felony for physicians to perform an abortion if the fetus has a “heartbeat [that] has been detected according” to a standard set out in the law. This moment typically occurs as soon as six weeks into a pregnancy, meaning that, by the time a woman determines that they are pregnant, she will often have only a few weeks to seek an abortion (or less if they do not discover their pregnancy until later). For many women, who lack the job flexibility to seek time off on such a short time frame, this will preclude them from having an abortion. Other women may be unable to obtain an abortion because they cannot find a clinic which can schedule them on such short notice.
As the Eighth Circuit explains, this effective six week ban cannot be sustained under Supreme Court decisions establishing that a woman retains the right to choose up until the point of fetal “viability.” (“Viability” is defined as that point “when, in the judgment of the attending physician on the particular facts of the case before him, there is a reasonable likelihood of the fetus’ sustained survival outside the womb, with or without artificial support.”) Yet, as the MKB Management opinion also notes, this is a very fragile legal standard — for as technology advances the date when a fetus can be sustained outside of a woman’s body is likely to become earlier and earlier. According to one court opinion quoted by the Eighth Circuit, “states in the 1970s lacked the power to ban an abortion of a 24-week-old-fetus because that fetus would not have satisfied the viability standard of that time, [t]oday . . . that same fetus would be considered viable, and states would have the power to restrict [such] abortions.”
Indeed, if the right to seek an abortion is rigidly tied to this date, that right may soon become little more than an illusion for many more women. Scientists are already trying to develop an artificial womb that would enable a human fetus to be brought to term outside of a woman’s uterus. One report claimed that this technology will exist within the next three decades. And even if cyborg uteruses do not become a reality any time soon, it is likely that medical science will push the date of fetal viability sooner and sooner.