Bette Grande: The Viability Of Viability


The 8th Circuit affirmed the US District Court Opinion that HB 1456 (the “Heartbeat Bill”) is unconstitutional.  But the 8th Circuit was almost apologetic about having to affirm the lower court’s ruling.  The full body of the Opinion is very positive for life and what we are doing in North Dakota.

Here is the opening paragraph from the Opinion:

“This case presents the question whether, given the current state of medical science, a state generally may prohibit physicians from aborting unborn children who posses detectible heartbeats.  The district court held that it may not.  Because Supreme Court precedent does not permit us to reach a contrary result, we affirm.”

Read that last sentence again.

That last sentence does not say North Dakota was wrong – it does not even say they agree with the district court, it simply says the 8th Circuit Court has no choice but to affirm.

The Opinion then devotes most of its time discussing why the Supreme Court precedent referred to is outdated based on advancements in science and medicine and, importantly, is beyond the scope of the courts.

In its Opinion, the 8th Circuit Court is practically begging the US Supreme Court to revisit and revise previous rulings in light of medical advancements — even going so far as to lay out the framework to justify the change.  As stated in the Opinion: “Although controlling Supreme Court precedent dictates the outcome in this case, good reasons exist for the Court to reevaluate its jurisprudence.”  Powerful.

Obviously the 8th Circuit Court was thoughtful in considering this case.  The oral argument was heard in early January, the same day the court also heard the argument for the Arkansas heartbeat legislation.  The Court issued its Opinion on the Arkansas case in early June (also very positive for life) and took another six weeks deliberating the ND case before issuing its Opinion.  This legislation was not ‘clearly unconstitutional,’ as abortion advocates and their friends in the media have repeatedly asserted.

In fact, the Court’s Opinion agreed with many of the arguments I, and others, made in favor of the Heartbeat Bill.  The real question is: Where is the ‘tipping point’ between the privacy rights of a woman and North Dakota’s compelling interest to protect life in the womb?  It is clear that the 8th Circuit does not agree that the viability marker from Roe (as revised in Casey) is that tipping point.  Not with what we now know about life in the womb.

The 8th Circuit argues that the current focus on viability is wrong “… because it gives too little consideration to the ‘substantial state interest in potential life throughout pregnancy.’”  This is a primary point of the Heartbeat Bill.

The Court also questioned other facts and findings from the Roe opinion and stated that time, knowledge and experience have proven them to be wrong.  Thankfully, the Court destroyed the fallacy that the abortion decision must be between “a woman and her doctor.”  The facts of ‘modern’ abortion practice simply do not allow for any kind of doctor/patient relationship, and the Court’s Opinion is clear on that.

Perhaps most importantly, the Court stated that the determination of the “tipping point” is best left to the States.  That is a main objective of the Heartbeat Bill.  With the strong difference of opinion on abortion throughout this country a “one size fits all” ruling from the US Supreme Court is unworkable.  The 50-plus years since Roe v Wade has shown that.  Likewise, in the highly unlikely event that the Supreme Court ruled abortion unconstitutional, that ruling would be unacceptable to many people in this country.   A solution is to return the decision of the “tipping point” back to each state.  The 8th Circuit seems to agree:

“But this choice is better left to the States which might find their interest in protecting unborn children better served by a more consistent and certain marker than viability.  Here, the North Dakota Legislature has determined that the critical point for asserting its interest in potential life is the point at which an unborn child possesses a detectable heartbeat. ‘To substitute its own preference to that of the legislature in this area is not the proper role of a court.’” (emphasis theirs)

What happens now with this lawsuit is anyone’s guess.  I trust in prudent considerations of the options.  But one thing is clear.  The protection of life at all stages is gaining ground, both in the Courts, and more importantly, in the hearts and minds of people throughout this country.

With a focus on this Heartbeat Bill, pain capable legislation and continuing advancements of our understanding of life in the womb we are clearly no longer talking about a ‘blob of tissue’.

Social media is spreading the truth in a way that the AP Stylebook and the media cannot control.  The ugly truth behind abortion and how unborn babies are treated and preyed upon is coming to light.  We are winning this battle.   It’s another great day for babies!