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Media Alerts - MKB Management Corp. v. Stenehjem - Eighth Circuit
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July 30, 2015
  MKB Management Corp. v. Stenehjem - Eighth Circuit
Headline Eighth Circuit panel affirms permanent injunction of North Dakota statute prohibiting abortion once fetus possesses detectable heartbeat

Area of Law Abortion rights

Issue(s) Presented Whether the district court properly determined that the North Dakota statute must be enjoined as an unconstitutional limitation on a woman's right to choose an abortion.

Brief Summary The sole abortion provider in North Dakota, together with its medical director, challenged the constitutionality of North Dakota House Bill 1456 (the "Bill") before it took effect, seeking a permanent injunction. The Bill provides that a physician performing an abortion must first determine whether the fetus has a detectible heartbeat. H.B. 1456 § 1.1. Moreover, a physician is prohibited from performing an abortion, except under limited exceptions, if a heartbeat has been detected in the fetus. Id. at § 2.1. A physician who violates this prohibition commits a felony. Id. at § 2.4.

On summary judgment, the plaintiffs submitted declarations stating that a fetus is generally not viable, meaning having a chance of survival outside the womb, until 24 weeks' gestation, but will normally have a detectable heartbeat by about 6 weeks. In response, defendants submitted a declaration stating that a fetus has a detectable heartbeat at 6-8 weeks, and that a fetus is viable from conception because in vitro fertilization "allow[s] an embryonic unborn child to live outside the human uterus (womb) for 2-6 days after conception." Based on United States Supreme Court precedent, including the Supreme Court's definition of "viability," the District Court permanently enjoined the Bill.

On appeal, a panel of the Eighth Circuit affirmed the District Court's ruling. Supreme Court precedent establishes the "right of the woman to choose to have an abortion before viability. . . without undue interference from the State." Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 846 (1992). The Supreme Court has defined viability as the time when "there is a reasonable likelihood of the fetus' sustained survival outside the womb, with or without artificial support." Colautti v. Franklin, 439 U.S. 379, 388 (1979). In this case, because the declaration submitted by defendants used a different definition of viability than that relied upon by the Supreme Court, it did not create a genuine dispute as to when viability occurs. The Eighth Circuit held that because the Bill prohibited abortions after the point at which a fetus has a detectable heartbeat, well before the currently recognized point of viability, it was unconstitutional and was properly enjoined by the District Court.

In dicta, the Eighth Circuit panel questioned the continuing usefulness of the viability standard established by Casey. The panel noted that it is not a consistent and certain benchmark, as medical and technological advances continue to move the point of viability earlier in a pregnancy. The panel also stated that current Supreme Court jurisprudence discounts state interests in protecting unborn children.

The full text of the opinion may be found at

Panel Circuit Judges Benton, Shepherd, and Smith

Date of Issued Opinion July 22, 2015

Decided Affirmed

Docket Number 14-2128

Counsel Daniel Gaustad for Appellants and Janet Crepps for Appellees

Author Circuit Judge Shepherd

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 07/30/2015 11:04 AM     8th Circuit  

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