Raising our standards: rethinking the Supreme Court's abortion jurisprudence.

• Author: Duckworth, E.C.
• Position: NOTE

MKB Management Corp. v. Stenehjem, 795 F.3d 768 (8th Cir. 2015), cert. denied, 136 S. Ct. 981 (2016).

1. INTRODUCTION

   The controversy regarding abortion rights in the United States is perhaps the single most polarizing and heated domestic issue facing our nation today. According to the most recent Gallup poll recording American's views on abortion, twenty-nine percent of Americans believe abortion should be legal in all circumstances, fifty-one percent believe abortion should be legal in limited circumstances, and nineteen percent believe abortion should be illegal in all circumstances. (1)

   Abortion is an incredibly sensitive subject to countless Americans with personal beliefs often stemming out of closely-held ideologies rooted in religion and personal liberty, and any decision on the subject should be made with extraordinary care. As such, when the Supreme Court of the United States is determining issues on this matter, it should do so with the utmost consideration, analyzing all implications of the potential reach of its decisions. Recently, Professor Randy Beck summarized the problem with the Supreme Court's current abortion standard well:

   If the Court asks citizens to lay aside deeply held political and social views in light of "a common mandate rooted in the Constitution," it is crucial to demonstrate that constitutional mandate to the contending parties. Drawing a line as far-reaching and consequential as the viability rule without a convincing constitutional rationale is more likely to aggravate the national division over abortion than to quell it. (2) * B.A., University of Missouri, 2014; J.D. Candidate, University of Missouri School of Law, 2017; Associate Editor, Missouri Law Review, 2016-2017. I would like to extend a special thank you to Associate Dean Paul Litton and the entire Missouri Law Review staff for their support and guidance in writing this Note.

   While the morally "right" or "wrong" issue surrounding abortion could be argued at length, this Note discusses taking a more reasonable approach in the analysis of abortion rights. In implementing standards for abortion rights, the Supreme Court should either apply consistent measures of a fetus's life that will maintain its practical implications over time or allow states to use the resources they possess to do so if the Court will not.

   Part II of this Note explores the Supreme Court's abortion jurisprudence by discussing MKB Management Corp. v. Stenehjem, which declared a North Dakota statute barring abortions after a fetus has a detectable heartbeat to be unconstitutional. Next, Part III analyzes the relevant history surrounding abortion rights and the rationale behind the precedent relied on in Stenehjem. Part IV examines the U.S. Court of Appeals for the Eighth Circuit's decision to void the statute, along with the Eighth Circuit's vehement plea for a new abortion standard. Finally, Part V of this Note reveals flaws in the Supreme Court's current abortion jurisprudence and concludes with an outlook on future challenges to the abortion standard.

2. FACTS AND HOLDING

   In 2013, North Dakota passed House Bill 1456 ("H.B. 1456"), later codified in North Dakota Century Code [section] 14-02.1, which expanded the state's prohibition on abortion to the point in a mother's pregnancy where the fetus has a detectable heartbeat. (3) Prior to this bill's enactment, North Dakota prohibited abortion "[after the point in pregnancy when the unborn child may reasonably be expected to have reached viability," except when necessary to preserve the life or health of the mother. (4)

   In restricting the availability of abortions, North Dakota's H.B. 1456 contained two operative provisions. The first provision required a physician performing an abortion to "determin[e], in accordance with standard medical practice, if the unborn child the pregnant woman is carrying has a detectable heartbeat." (5) However, this requirement was not applicable "when a medical emergency exists that prevents compliance." (6) Violation of the heartbeat-testing requirement subjected the performing physician to disciplinary action before the state board of medical examiners. (7) The bill provided, "Failure to determine whether a heartbeat is detectible is punishable through a disciplinary action against a physician by the North Dakota Board of Medical Examiners, which can include suspension or revocation of the physician's license." (8)

   H.B. 1456's second operative provision prohibited a physician from performing an abortion on a pregnant woman if the fetus had a "heartbeat [that] ha[d] been detected according to the requirements of section 1." (9) Exceptions were given if there was a medical emergency jepordizing the life or health of the pregnant woman or the life of another unborn child. (10) A physician found in violation of this provision committed a felony, while the pregnant woman faced no liability. (11)

   MKB Management Corporation ("MKB") and Dr. Kathryn Eggleston (together, "Plaintiffs") brought suit challenging the statute's constitutionality and sought a preliminary injunction. (12) MKB is the sole abortion provider in the state of North Dakota and does business as "Red River Women's Clinic." (13) Dr. Eggleston is the clinic's medical director and provides abortions to the clinic's patients. (14)

   Plaintiffs requested preliminary injunctive relief to prevent Defendants from enforcing H.B. 1456. (15) Plaintiffs argued that the "statute [was] an unconstitutional abridgment of the right to abortion protected under the Fourteenth Amendment of the United States Constitution." (16) Plaintiffs' primary contention was that the statute banned virtually all abortions in North Dakota, unconstitutionally banning abortions prior to viability of the fetus. (17)

   The North Dakota Attorney General and members of the North Dakota Board of Medical Examiners (collectively, "Defendants") argued for the enforcement of H.B. 1456. (18) In their response, Defendants argued that a fetus was viable upon conception (19) and that H.B. 1456 was constitutional, as abortions could still be performed until the point a fetal heartbeat was detected. (20) Further, Defendants contended that "a woman's right to [an] abortion before viability was not absolute and must be weighed against the state's interest in protecting the fetus and mother." (21) Thus, it was Defendants' position that the implementation of H.B. 1456 provided a valuable state interest in protecting the life of an unborn child and protecting the physical and mental health of the mother seeking an abortion. (22) In doing so, Defendants believed they were "preserving the integrity of the medical profession, preventing the coarsening of society's moral sense and promoting respect for human life." (23)

   The U.S. District Court for the District of North Dakota granted Plaintiffs a preliminary injunction, whereupon Plaintiffs moved for summary judgment. (24) In support of their motion for summary judgment, Plaintiffs relied on the opinions of both Dr. Eggleston and Dr. Christie Iverson, a board-certified obstetrician and gynecologist, as set forth in their affidavits. (25) Through their affidavits, both argued that fetal cardiac activity was not detectable until about six weeks, and that the fetus was not viable until around twenty-four weeks. (26) More so, they stated that since most women do not know they are pregnant until about six weeks, and with the clinic being open for abortions just one day per week, women would be limited in their ability to obtain an abortion to a single day during the pregnancy's fifth week. (27)

   Defendants responded with their own expert, Dr. Jerry Obritsch, a board-certified obstetrician and gynecologist licensed in North Dakota. (28) In his affidavit, Dr. Obritsch stated that fetal cardiac activity was detectable by about six to eight weeks, and that a fetus is viable from conception with the use of in vitro fertilization ("IVF"), which allows the fetus to live outside the womb for two to six days after conception. (29)

   In granting Plaintiffs' motion for summary judgment, the district court stated that "[a] woman's constitutional right to terminate a pregnancy before viability has consistently been upheld by the United States Supreme Court for more than forty years since Roe v. Wade." (30) The court believed there to be no genuine issue of material fact, even though Dr. Obritsch provided a definition of viability that would satisfy constitutional precedent, his definition was not consistent with that of the Supreme Court or the medical community in general. (31) The district court held that "H.B. 1456 clearly prohibits pre-viability abortions in a very significant percentage of cases in North Dakota, thereby imposing an undue burden on women seeking to obtain an abortion." (32)

   Defendants appealed this decision, contending that the trial court erred in granting Plaintiffs' motion for summary judgment and that doing so was an abuse of the court's discretion. (33) On appeal, the U.S. Court of Appeals for the Eighth Circuit affirmed the district court's decision and held that the North Dakota abortion law impermissibly infringed on the right to terminate pregnancy before viability, as set forth by Supreme Court's precedent that states may not prohibit pre-viability abortions. (34)

3. LEGAL BACKGROUND

   Abortion rights are by no means an unfamiliar topic for the Supreme Court. First, Part III will provide the relevant legal history surrounding the Supreme Court's abortion jurisprudence, providing a foundation for examining the law as it stands today. Then, Part III will delve into the meaning of the illusory term "viability" and how this term interplays with the Supreme Court's abortion standards.

   1. The Supreme Court's Abortion Jurisprudence

      Prior to the Supreme Court's landmark decision in Roe v. Wade, and throughout a large portion of America's history, states have vastly encumbered women's right to an abortion. (35)...