N.D. governor approves 6-week abortion ban, says constitutionality is "open question"

BISMARCK, N.D. Gov. Jack Dalrymple signed legislation Tuesday that that would make North Dakota the nation's most restrictive state on abortion rights, banning the procedure if a fetal heartbeat can be detected — something that can happen as early as six weeks into a pregnancy.

The Republican governor also signed into law another measure that would makes North Dakota the first to ban abortions based on genetic defects such as Down syndrome, and a measure that requires a doctor who performs abortions to be a physician with hospital-admitting privileges.

The measures, which would take effect Aug. 1, are fueled in part by an attempt to close the state's sole abortion clinic in Fargo. Dalrymple, in a statement, said the so-called fetal heartbeat bill is a direct challenge to 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.

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"Although the likelihood of this measure surviving a court challenge remains in question, this bill is nevertheless a legitimate attempt by a state legislature to discover the boundaries of Roe v. Wade," Dalrymple said. "Because the U.S. Supreme Court has allowed state restrictions on the performing of abortions and because the Supreme Court has never considered this precise restriction ... the constitutionality of this measure is an open question."

CBS News' Jan Crawford reported that the measure could go far beyond abortion and effectively ban in vitro fertilization since fertilized eggs could be damaged during the procedure. (Watch Crawford's full report at left).

Abortion-rights advocates have promised a legal fight that they say will be long, costly and unwinnable for the state.

Dalrymple's statement said the Legislature "should appropriate dollars for a litigation fund" before the session ends in early May.

Arkansas passed a 12-week ban earlier this month that prohibits most abortions when a fetal heartbeat can be detected using an abdominal ultrasound. That ban is scheduled to take effect 90 days after the Arkansas Legislature adjourns.

A fetal heartbeat can generally be detected earlier in a pregnancy using a vaginal ultrasound, but Arkansas lawmakers balked at requiring women seeking abortions to have the more invasive imaging technique.

North Dakota's legislation doesn't specify how a fetal heartbeat would be detected. Doctors performing an abortion after a heartbeat is detected could face a felony charge punishable by up to five years in prison and a $5,000 fine. Women having an abortion would not face charges.

The legislation to ban abortions based on genetic defects also would ban abortion based on gender selection. The Guttmacher Institute, which tracks abortion laws throughout the country, says Pennsylvania, Arizona and Oklahoma also have laws outlawing abortion based on gender selection.

The Republican-led North Dakota Legislature has endorsed a spate of anti-abortion Legislation this year. North Dakota lawmakers moved last week to outlaw abortion in the state by passing a resolution defining life as starting at conception, essentially banning abortion in the state. The measure is likely to come before voters in November 2014.

Representatives also endorsed another anti-abortion bills last week that is awaiting Dalrymple's signature. It would ban abortions after 20 weeks of pregnancy based on the disputed premise that fetuses feel pain at that point.

Dalrymple said the measure requiring abortion doctors to have hospital-admitting privileges also likely will be challenged in court.

"Nevertheless, it is a legitimate and new question for the courts regarding a precise restriction on doctors who perform abortions," he said.