N.D. Judge Says Law Does Not Require Abortion Clinic To Purchase Costly Device To Hear Fetal Heart Tone

Main Category: Abortion
Also Included In: Pregnancy / Obstetrics;  Litigation / Medical Malpractice;  MRI / PET / Ultrasound
Article Date: 14 Aug 2009 - 5:00 PDT

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North Dakota East Central District Judge Douglas Herman on Wednesday ruled in favor of Red River Women's Clinic in Fargo, the state's only abortion clinic, in a suit brought by the New York-based Center for Reproductive Rights challenging a state law requiring that women be offered a chance to view images of the fetus at least 24 hours before having an abortion and that an "auscultation of the fetal heart tone ... of a quality consistent with standard medical practice in the community" be available. The clinic already provides ultrasounds to all of its patients prior to abortion. The CRR suit challenged the "auscultation" requirement, arguing that it was unconstitutionally vague and would place an undue financial burden on the clinic, which would need to spend more than $28,000 to purchase equipment capable of allowing the fetal heartbeat to be heard at the earliest stages of gestation (Kolpack, AP/Dickson Press, 8/13). Herman wrote in the ruling, "It should allow the clinic to continue in business much as it has in the past, only requiring that it provide information about fetal heart tone auscultation services, if available elsewhere."

According to the Fargo-Moorhead Forum, the state had argued for the interpretation that Herman reached (Roepke, Fargo-Moorhead Forum, 8/13). The law was supposed to take effect Aug. 1, but the prosecutors agreed not to enforce it until Herman issued a ruling (AP/Dickson Press, 8/13). The clinic had requested a July 30 hearing, and Herman decided to clarify the law rather than issuing an injunction to suspend it (Fargo-Moorhead Forum, 8/13).

Herman said that although parts of the law were poorly written, it was not so unclear as to be unconstitutional. "Rather, it can be interpreted in a straightforward manner requiring the clinic simply to provide information as to auscultation services in addition to the active ultrasound devices the clinic itself offers if available within the community," Herman wrote. Herman's ruling also suggested that the new equipment was unnecessary, according to the AP/Press. He said that the clinic routinely performs ultrasounds before abortion procedures to determine fetal age and location but that listening for a fetal heartbeat is rare and of "limited diagnostic value," even for women carrying their pregnancies to term.

Tammi Kromenaker, the director of the clinic, said, "We're happy to see that the judge noted in his ruling that the wording was vague." She added that "it was difficult to determine on first reading what our obligations are. The decision allows us to offer services without having to worry about criminal liability" (AP/Dickson Press, 8/13).

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