Opinion

North Dakota Just Criminalized ‘Human Dismemberment Abortion’ and Everything About the Statute Is a Mess

North Dakota is spending its time and resources passing poorly-written laws that it doesn’t need and that it knows are unconstitutional. I’m not exaggerating here. On Wednesday, Republican Governor Doug Burgum signed House Bill 1546 into law – and it’s a mess. Judging from the language of the bill, its drafters were more far more interested in shocking readers than in passing useful (or Constitutional) legislation.

House Bill 1546 criminalizes what it calls human dismemberment abortion” – a non-medical term that the North Dakota legislature spent great effort describing:

For purposes of this section, “human dismemberment abortion” means intentionally dismembering a living unborn child and extracting the unborn child one piece at a time from a uterus, with the purpose of causing the death of an unborn child, through use of clamps, grasping forceps, tongs, scissors, or similar instruments that, through the convergence of two rigid levers, slice, crush, or grasp the head, arm, leg, spinal cord, internal organ, or other portion of the unborn child’s body to cut or rip it off, regardless if the fetal body parts are removed by the same instrument, suction, or other means.

The new statute creates a Class C felony, and would punish doctors performing the prohibited procedures with up to five years of prison time and a $10,000 fine.

I’m all for plain language in statutes, but this is ridiculous. This bill seems to have been the product of a macabre desire to rail against abortion, not as a thoughtful measure to regulate a medical procedure. Proper criminal statutes rely on precise but dispassionate language to specific proscribed behavior – they do not dream up disturbing hypotheticals as a way of advocating a particular social or political philosophy. At best, the statute is poorly-drafted; at worst, it’s an irresponsible dereliction of duty.

Furthermore, North Dakota’s strike against reproductive freedom not only offends decades of Constitutional precedent, but it is also utterly unnecessary. North Dakota has one abortion clinic – and it hasn’t performed any of the procedures listed in this statute in at least four years. A fundamental rule of governing is that responsible lawmakers focus on legislation likely to achieve a pragmatic result; legislating is not meant to be a hypothetical, academic, or philosophical exercise. Apparently up in the Dakotas, government resources are so bountiful that its elected officials are happy to spend their time fixing things that aren’t broken.

Oh, and there’s more to hate about 1546. North Dakota appears to know its statute is illegal. In the section marked “Effective Date,” the statute lists out a bunch of hypothetical start dates, including thirty days after an imaginary Constitutional amendment is passed allowing states to prohibit abortion or after SCOTUS overturns Roe v. Wade. I mean I’m all for being proactive, but this feels like the legislative equivalent of stockpiling ammo and MREs for the end of days.

Using public resources to debate, draft, and pass a law that criminalizes behavior in which no one is even engaging is asinine; throw in the idea that North Dakota is knowingly acting unconstitutionally and in direct contravention of Supreme Court precedent, and you’ve got a government that is anything but “conservative.”

[Image via Saul Loeb/Getty Images]

This is an opinion piece. The views expressed in this article are those of just the author.

Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. She is a frequent media contributor, and is Of Counsel to Smedley & Lis, in Woodbury, New Jersey. Follow Elura on Twitter @elurananos

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