Does the North Dakota law banning Down syndrome-selective abortions impose an undue burden?

Fig. 1 U.S. abortion clinic locations
source: The Daily Beast

I wrote last week about North Dakota’s new law prohibiting sex-selective and Down syndrome-selective abortions. What will the law’s impact be, and will it be struck down as unconstitutional? The two questions are related because the constitutional test for abortion restrictions are whether they impose an “undue burden.” The Supreme Court applied this standard two decades ago in Casey v. Planned Parenthood. In Gonzalez v. Carhart, the most recent Supreme Court decision upholding a restriction on abortion, the Court summarized the test in Casey:

Before viability, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy. It also may not impose upon this right an undue burden, which exists if a regulation’s purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.

This is the test by which the North Dakota law will be measured for constitutionality, should it be challenged. Let’s consider how this possibly may play out.

The effect of the law will be forcing a woman in North Dakota seeking a sex- or disability-selective abortion to travel out of state. As I’ve written elsewhere, banning abortion does not eliminate abortion following a Down syndrome diagnosis. Instead, most of those pregnancies are still terminated, due to the mother traveling to where abortion is permitted.

Whether extending the travel is an undue burden is further informed by the availability of abortion in North Dakota. Fig.1 shows the locations of abortion clinics across the United States. A quick look will reveal that simply being in North Dakota may pose a substantial obstacle in seeking an abortion. The only abortion clinic is in Fargo, on the state border with Minnesota. Researchers presented at the recent ACMG conference how, at one Minnesota medical center, the rate of abortion following a prenatal diagnosis for Down syndrome was 79%. This figure was from a more current data set than the previous studies on abortion rate, with the years studied being 2000-2011. Further, the researchers reported that the rate was increasing in more recent years. Therefore, for those North Dakotans who seek to have a sex- or disability-selective abortion, they may still do so by crossing the border to Minnesota (or Montana, South Dakota, or Canada, all of which do not ban selective abortion).

This is not to minimize the burden that extensive travel can pose, particularly given that following an abortion long travel is not recommended for recovery. Extensive travel has regularly been raised as an objection to abortion restrictions. However, in Casey, the court upheld a waiting period, even though it could place a burden for those traveling for the procedure; the court just found that the waiting period was not an “undue burden.”

Further, the opinion in Gonzalez provides additional grounds for analysis of the North Dakota law. There, the court upheld the partial-birth abortion ban even after noting that the ban was effective against both post-viability and pre-viability abortions. Though the standard quoted above seemed to prohibit restrictions to previable abortions, the court reasoned that the purpose of the partial birth abortion ban was not to restrict abortion, but instead to regulate the medical profession from using a particular surgical procedure. As the court said:

There can be no doubt the government has an interest in protecting the integrity and ethics of the medical profession. Under our precedents it is clear the State has a significant role to play in regulating the medical profession. * * * The fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it. * * * Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn. * * * Congress could nonetheless conclude that the type of abortion proscribed by the Act requires specific regulation because it implicates additional ethical and moral concerns that justify a special prohibition.

Similar reasoning could be used in defense of the North Dakota law. While it states that sex- and disability-selective abortions are prohibited, its method of prohibition is through a criminal penalty for the medical practitioner who performs the selective abortion. By its enforcement mechanism, then, the law is a regulation of the medical profession prohibiting a particular type of abortion. Further, the purpose of the law is prohibiting discrimination on the basis of sex or disability. As mentioned in my earlier posts, there are numerous anti-discrimination laws. So, in this sense, the type of abortion–sex/disability-selective abortion–is prohibited because it implicates additional ethical and moral concerns that have justified special prohibition, namely discrimination based on sex and disability. That ACOG has a specific ethics committee opinion for the purpose of saying sex-selective abortions are unethical would be Exhibit A in North Dakota’s defense of its law that it implicates ethical concerns thereby justifying regulation of the medical profession.

With all this said, the North Dakota law is a prohibition of pre-viable abortion that puts a substantial obstacle in the way of a woman seeking a sex- or disability-selective abortion: if a woman wants an abortion because of the sex or disability of the fetus, the new law puts any practitioner providing such an abortion in jeopardy of one-year’s confinement and a fine up to $10,000. For this very reason, the law ultimately may be ruled unconstitutional, if it is challenged. However, the make-up of the Court has shifted since Gonzalez and even more so since Casey. Justice Kennedy joined the plurality that set the rule quoted above in Casey but then he wrote the Gonzalez decision, interpreting that same rule to uphold the prohibition of a type of abortion. Consequently, there is equal reason to believe the law will withstand a constitutional challenge.

This post has caused flashbacks to my second-semester Con Law final in law school, which included a question on the Casey opinion. I have not practiced law in this area and so I invite all informed comments on this analysis or generally how abortion caselaw informs the North Dakota law. I hope that you will comment, but should you, please focus your comment on [1] the content of this post or [2] the content of another comment, but not on the other commentator personally.