20 Important Quotes from MKB Management Corp. v. Stenehjem

1. Because there is no genuine dispute that H.B. 1456 generally prohibits abortions before viability—as the Supreme Court has defined that concept—and because we are bound by Supreme Court precedent holding that states may not prohibit pre-viability abortions, we must affirm the district court’s grant of summary judgment to the plaintiffs.




2. The evolution in the Supreme Court’s jurisprudence reflects its increasing recognition of states’ profound interest in protecting unborn children.




3. [A]lso bound by the Court’s statement that viability is the time “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.”




4. Dr. Obrtisch’s definition of viability differs from the Supreme Court’s…




5. Although controlling Supreme Court precedent dictates the outcome in this case, good reasons exist for the Court to reevaluate its jurisprudence.




6. [T]he Court’s viability standard has proven unsatisfactory because it gives too little consideration to the “substantial state interest in potential life throughout pregnancy.”




7. By deeming viability “the point at which the balance of interests tips,” the Court has tied a state’s interest in unborn children to developments in obstetrics, not to developments in the unborn. This leads to troubling consequences for states seeking to protect unborn children. (Internal citation omitted.)




8. How it is consistent with a state’s interest in protecting unborn children that the same fetus would be deserving of state protection in one year but undeserving of state protection in another is not clear. The Supreme Court has posited there are “logical and biological justifications” for choosing viability as the critical point. 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. (Emphasis added, internal citation omitted.)




9. 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.” (Internal citation omitted.)




10. By taking this decision away from the states, the Court has also removed the states’ ability to account for “advances in medical and scientific technology [that] have greatly expanded our knowledge of prenatal life,”




11. “[B]ecause the Court’s rulings have rendered basic abortion policy beyond the power of our legislative bodies, the arms of representative government may not meaningfully debate” medical and scientific advances. (Internal citation omitted.)




12. Thus the Court’s viability standard fails to fulfill Roe’s “promise that the State has an interest in protecting fetal life or potential life.” Casey,




13. Medical and scientific advances further show that the concept of viability is itself subject to change. The Court has already acknowledged that viability continues to occur earlier in pregnancy.




14. When the Court decided Roe in 1973, viability generally occurred at 28 weeks. In 1992, viability “sometimes” occurred at 23 to 24 weeks. Today, viability generally occurs at 24 weeks, but it may occur weeks earlier. (Internal citations omitted.)




15. “Roe’s assumption that the decision to abort a baby will be made in close consultation with a woman’s private physician is called into question by” declarations from women who have had abortions.




16. The declaration by Dr. John Thorp, a board-certified obstetrician and gynecologist, further states that “coercion or pressure prior to the termination of pregnancy occurs with frequency.”




17. The declarations from women who have had abortions also show abortions may cause adverse consequences for the woman’s health and well-being.




18. Dr. Obritsch also explained some studies support a connection between abortion and breast cancer.




19. We further observe that the pseudonymously named plaintiffs in two of the Supreme Court’s foundational abortion cases later advocated against those very decisions.




20. In short, the continued application of the Supreme Court’s viability standard discounts the legislative branch’s recognized interest in protecting unborn children.

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