United States Court of Appeals

For the Eighth Circuit

___________________________

No. 14-2128

___________________________

MKB Management Corp., doing business as Red River Women’s Clinic; Kathryn

L. Eggleston, M.D.

lllllllllllllllllllll Plaintiffs - Appellees

v.

Wayne Stenehjem, in his official capacity as Attorney General for the State of

North Dakota; Larry Johnson, M.D.; Robert Tanous, D.O.; Kate Larson, P.A.C.;

Norman Byers, M.D.; Cory Miller, M.D.; Kayleen Wardner; Gaylord J. Kavlie,

M.D.; Kent Martin, M.D.; Kent Hoerauf; Burt L. Riskedahl; Jonathan Haug, M.D.;

Genevieve Goven, M.D.; Robert J. Olson, M.D., in their official capacities as

members of the North Dakota Board of Medical Examiners

lllllllllllllllllllll Defendants - Appellants

Birch Burdick, in his official capacity as State Attorney for Cass County

lllllllllllllllllllll Defendant

------------------------------

Foundation for Moral Law; Lutherans for Life; Women Injured by Abortion; An

Abortion Survivor - Dawn Milberger and Sandra Cano; The Former “Mary Doe”

of “Doe v. Bolton”

lllllllllllllllllllllAmici on Behalf of Appellant(s)

American Psychological Association; American Public Health Association;

American College of Obstetricians and Gynecologists; Physicians for

Reproductive Health; Program for the Study of Reproductive Justice - Information
Society Project at the Yale Law School

lllllllllllllllllllllAmici on Behalf of Appellee(s)

____________

Appeal from United States District Court 

for the District of North Dakota - Bismarck

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 Submitted: January 13, 2015

 Filed: July 22, 2015

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Before SMITH, BENTON, and SHEPHERD, Circuit Judges.

____________

SHEPHERD, Circuit Judge.

This case presents the question whether, given the current state of medical

science, a state generally may prohibit physicians fromaborting unborn children who

possess detectable heartbeats. The district court held that it may not. Because 1

United States Supreme Court precedent does not permit us to reach a contrary result,

we affirm.

I.

North Dakota has, for a number of years, prohibited abortion “[a]fter 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. N.D.

Cent. Code § 14-02.1-04(3). North Dakota defines “viable” as “the ability of an

The Honorable Daniel L. Hovland, United StatesDistrictJudge for the District 1

of North Dakota.

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unborn child to live outside the mother’s womb, albeit with artificial aid.” Id. § 14-

02.1-02(19).

In 2013, North Dakota passed House Bill 1456, codified at N.D. Cent. Code

§ 14-02.1, which extends the general prohibition on abortion to the point in

pregnancy when the unborn child possesses a detectable heartbeat. H.B. 1456

contains two operative provisions. The first requires 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.” H.B. 1456 § 1.1,

63d Leg. Assemb., Reg. Sess. (N.D. 2013). This requirement does not apply “when

a medical emergency existsthat prevents compliance.” Id.; see also N.D. Cent. Code

§ 14-02.1-02(12) (defining “medical emergency”). A physician who violates the

heartbeat testing requirement is subject to disciplinary action before the state board

of medical examiners. See H.B. 1456 § 1.2. 

The second operative provision prohibits a physician from performing an

abortion on a pregnant woman if the unborn child has a “heartbeat [that] has been

detected according to the requirements of section 1.” Id. § 2.1. There are exceptions

for the life or health of the pregnant woman and for the life of another unborn child. 

Id. § 2.2(a). A physician who violates this provision commits a felony. Id. § 2.4. 

The pregnant woman, however, is not subject to liability. Id.

Plaintiff MKB Management Corporation, doing business as the Red River

Women’s Clinic, isthe sole abortion provider in North Dakota. Plaintiff Dr. Kathryn

Eggelston is a board-certified familymedicine physician, licensed to practice in North

Dakota, who serves as the Clinic’s medical director and provides abortions to the

Clinic’s patients. The defendants are the State’s Attorney for the county in which the

Clinic is located, the North Dakota Attorney General, and the members of the North

Dakota Board of Medical Examiners, all in their official capacities (collectively, the

“State”).

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Before H.B. 1456 took effect, the plaintiffs brought suit in the district court,

challenging the law’s constitutionality and seeking injunctive relief. The district

court granted a preliminary injunction enjoining the implementation of H.B. 1456. 

The plaintiffs thenmoved for summary judgment, arguing H.B. 1456 violatesthe Due

Process Clause of the United States Constitution. The plaintiffs submitted

declarations from Dr. Eggleston and Dr. Christie Iverson, a board-certified

obstetrician and gynecologist licensed in North Dakota, both stating that fetal cardiac

activity is detectable by about 6 weeks and that a fetus is not viable until about 24

weeks. In response, the State submitted the declaration of Dr. Jerry Obritsch, a

2

board-certified obstetrician and gynecologist licensed in North Dakota, that an unborn

child’s heartbeat is detectable by about 6 to 8 weeks and that an unborn child is viable

fromconception because in vitro fertilization (“IVF”) “allow[s] an embryonic unborn 3

child to live outside the human uterus (womb) for 2 - 6 days after conception.” 

Obritsch Dec. at 8. 

The district court found 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.” MKB Mgmt. Corp. v. Burdick,

16 F. Supp. 3d 1059, 1070 (D.N.D. 2014). It reasoned that “the affidavit of Dr.

Obritsch does not create a genuine issue [as to when viability occurs] primarily

because Dr. Obritsch uses a different definition of viability than the one used by

either the United States Supreme Court or the medical community generally.” Id. at

Dr. Iverson further explained that “[p]regnancy is commonly measured by the

2

number of days that have passed since the first day of a woman’s last menstrual

period.” Iverson Dec. at 2. 

Dr. Obritsch described IVF as a common practice in which embryonic unborn 3

children live outside the woman’s uterus through artificial means before being

transferred into the uterus to continue gestation. He noted a colloquial term for these

children is “test tube babies.” Obritsch Dec. at 8. 

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1073. Concluding 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,” the district court granted summary

judgment to the plaintiffs, permanently enjoining H.B. 1456. Id. at 1074-75. The

State now appeals.

II.

We review the district court’s grant of summary judgment de novo and its

permanent injunction for an abuse of discretion. Roach v. Stouffer, 560 F.3d 860,

863 (8th Cir. 2009). 

The State argues that the Supreme Court has called into question the continuing

validity of its abortion jurisprudence, see Gonzales v. Carhart, 550 U.S. 124, 146

(2007) (merely assuming, rather than reaffirming, the principles established in prior

cases), and that changes in the facts underlying Roe and Casey require us to overturn

those cases.

The evolution in the Supreme Court’s jurisprudence reflects its increasing

recognition of states’ profound interest in protecting unborn children. In 1973, the

Court announced it would regulate abortion according to the trimester framework. 

Roe v. Wade, 410 U.S. 113, 164-65 (1973). Although Roe acknowledged there were

“important state interests in regulation,” it prohibited states from issuing regulations

designed to promote their interest in “protecting potential life” during the first two

trimesters of pregnancy. Id. at 154, 164.

By 1992, however, a plurality of the Court had rejected the trimester

framework because it failed to “fulfill Roe’s own promise that the State has an

interest in protecting fetal life or potential life.” Planned Parenthood of Se. Pa v.

Casey, 505 U.S. 833, 876 (1992). Casey recognized “there is a substantial state

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interest in potential life throughout pregnancy.” Id. (plurality opinion). To give this

interest due consideration, Casey replaced Roe’s trimester framework with the undue

burden analysis, under which a state may promote its interest in potential life by

regulating abortion before viability so long as the regulation’s “purpose or effect is

[not] to place a substantial obstacle in the path of a woman seeking an abortion.” Id.

at 878 (plurality opinion).

Most recently, a majority of the Court, when presented with an opportunity to

reaffirmCasey, chose instead merely to “assume” Casey’s principlesfor the purposes

of its opinion. See Gonzales, 550 U.S. at 145-46 (“assum[ing] the following

principles [from Casey] for the purposes of this opinion,” but recognizing those

principles “did not find support from all those who join the instant opinion”); see also

id. at 186-87 (Ginsburg, J., dissenting) (observing that “[t]he Court’s hostility to the

right Roe and Casey secured” is evident in the fact that the Court “merely assume[d]

for the moment, rather than retained or reaffirmed,” Casey’s principles (second

alteration in original) (citation and internal quotation marks omitted)). This mere

assumption may, as the State suggests, signal the Court’s willingness to reevaluate

its abortion jurisprudence.

Even so, the Court has yet to overrule the Roe and Casey line of cases. Thus

we, as an intermediate court, are bound by those decisions. Neither Gonzales’s signal

nor the alleged change of underlying facts empowers us to overrule the Supreme

Court. See Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484

(1989) (emphasizing that only the Supreme Court may overturn its own precedent). 

Accordingly, we have no choice but to follow the majority of the Court in

assuming the following principles for the purposes of this opinion:

Before viability, a State “may not prohibit any woman from making the

ultimate decision to terminate her pregnancy.” It also may not impose

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upon this right an undue burden, which exists if a regulation’s “purpose

or effect isto place a substantial obstacle in the path of a woman seeking

an abortion before the fetus attains viability.” On the other hand,

“[r]egulations which do no more than create a structural mechanism by

which the State, or the parent or guardian of a minor, may express

profound respect for the life of the unborn are permitted, if they are not

a substantial obstacle to the woman’s exercise of the right to choose.”

Gonzales, 550 U.S. at 146 (alteration in original) (citations omitted) (quoting Casey,

505 U.S. at 879, 878, and 877 (plurality opinion)).

Here, because the parties do not dispute that fetal heartbeats are detectable at

about 6 weeks, it is clear that H.B. 1456 generally prohibits abortions after that point

in a pregnancy. Whether such a prohibition is permissible under the principles we

accept as controlling in this case depends on when viability occurs: if viability occurs

at about 24 weeks, asthe plaintiffs maintain, then H.B. 1456 impermissibly prohibits

women from making the ultimate decision to terminate their pregnancies; but if

viability occurs at conception, as the State argues, then no impermissible prohibition

ensues.

Just as we are bound by the Supreme Court’s assumption of Casey’s principles,

we are also 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.” Colautti v. Franklin, 439 U.S. 379, 388 (1979);

see also Casey, 505 U.S. at 870 (plurality opinion) (“[T]he concept of viability . . . is

the time at which there is a realistic possibility of maintaining and nourishing a life

outside the womb . . . .”); Roe, 410 U.S. at 160, 163 (stating that a fetus becomes

viable when it is “potentially able to live outside the mother’s womb, albeit with

artificial aid” and that viability is the point at which the fetus “presumably has the

capability of meaningful life outside the mother’s womb”).

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When we recently reviewed an Arkansas statute similar to H.B. 1456, we noted

“the importance of the parties, particularly the state, developing the record in a

meaningful way so asto present a real opportunity for the court to examine viability.” 

Edwards v. Beck, 786 F.3d 1113, 1119 (8th Cir. 2015) (per curiam). Here, the

plaintiffs’ declarations, by Drs. Eggleston and Iverson, state viability occurs at about

24 weeks. Dr. Iverson explained she understands viability to mean “the time when

a fetus has a reasonable chance for sustained life outside the womb, albeit with

lifesaving medical intervention.” Iverson Dec. at 2. This definition is in accordance

with the one adopted by the Supreme Court.

The State’s declaration, by Dr. Obritsch, contends viability occurs at

conception because IVF “allow[s] an embryonic unborn child to live outside the

human uterus (womb) for 2 - 6 days after conception.” Obritsch Dec. at 8. While this

declaration providessome support for the State’s argument, we agree with the district

court that Dr. Obrtisch’s definition of viability differs from the Supreme Court’s and

thus does not create a genuine dispute asto when viability occurs. See Churchill Bus.

Credit, Inc. v. Pac. Mut. Door Co., 49 F.3d 1334, 1336 (8th Cir. 1995) (“A factual

dispute is genuine ‘if the evidence issuch that a reasonable jury could return a verdict

for the nonmoving party.’” (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986))).

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. See Fed. R. Civ. P. 56(a) (“The court shall grant summary

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judgment if the movant shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.”).

4

III.

Although controlling Supreme Court precedent dictates the outcome in this

case, good reasons exist for the Court to reevaluate its jurisprudence. See City of

Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 458 (1983) (O’Connor,

J., dissenting) (“Although [the Court] must be mindful of the ‘desirability of

continuity of decision in constitutional questions . . . when convinced of former error,

[the] Court has never felt constrained to follow precedent.’” (quoting Smith v.

Allwright, 321 U.S. 649, 665 (1944))).

A.

To begin, the Court’s viability standard has proven unsatisfactory because it

gives too little consideration to the “substantial state interest in potential life

throughout pregnancy.” Casey, 505 U.S. at 876 (plurality opinion). By deeming

viability “the point at which the balance of interests tips,” id. at 861, 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. For example, although “states in the 1970s lacked the

power to ban an abortion of a 24-week-old-fetus because that fetus would not have

satisfied the viability standard of that time, [t]oday . . . that same fetus would be

The State also appeals the district court’s affirmance of a magistrate judge’s 4

order limiting discovery to the issue of viability. Because viability presents the

central issue in this case, the district court did not err in affirming the magistrate

judge’s order. See Admiral Theatre Corp. v. Douglas Theatre Co., 585 F.2d 877, 889

(8th Cir. 1978) (noting that a district court must be allowed the discretion to limit the

scope of discovery “to what the court perceived were the central issues”).

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considered viable, and states would have the power to restrict [such] abortions.” 

Edwards, 786 F.3d at 1118 (final alteration in original) (citation and internal

quotation marks omitted). How it is consistent with a state’s interest in protecting

unborn children that the same fetus would be deserving ofstate 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. Roe, 410 U.S. at 163. 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. 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.” 

Edwards, 786 F.3d at 1119.

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,” Hamilton v. Scott, 97 So. 3d

728, 742 (Ala. 2012) (Parker, J., concurring specially), including that “a baby

developssensitivity to externalstimuli and to pain much earlier than was. . . believed

[when Roe was decided].” McCorvey v. Hill, 385 F.3d 846, 852 (5th Cir. 2004)

(Jones, J., concurring). “[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. Id.

(Jones, J., concurring). 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,

505 U.S. at 876 (plurality opinion).

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. See Casey, 505 U.S. at 860. When the Court decided

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Roe in 1973, viability generally occurred at 28 weeks. Roe, 410 U.S. at 160. In

1992, viability “sometimes” occurred at 23 to 24 weeks. Casey, 505 U.S. at 860. 

Today, viability generally occurs at 24 weeks, but it may occur weeks earlier. See

Matthew A. Rysavy, B.S., et al., Between-Hospital Variation in Treatment and

Outcomesin Extremely PretermInfants, 372 New England Journal of Medicine 1801

(2015) (documenting survival rates of infants born at 22 weeks); see also Edwards,

786 F.3d at 1119 (discussing the case of Amillia Taylor, who survived after being

born at 21 weeks). Dr. Obritsch’s declaration, although insufficient to create a

genuine dispute of fact in the face of the Supreme Court’s current definition of

viability, showsthe concept of viability may be attacked fromthe point of conception

forward, as well. As IVF and similar technologiesimprove, we can reasonably expect

the amount of time an “embryonic unborn child” may survive outside the womb will

only increase. The viability standard will prove even less workable in the future.

B.

Another reason for the Court to reevaluate its jurisprudence is that the facts

underlying Roe and Casey may have changed. The State has presented evidence to

that effect and the plaintiffs did not contest this evidence at the summary judgment

stage. The State’s evidence “goes to the heart of the balance Roe struck between the

choice of a mother and the life of her unborn child.” McCorvey, 385 F.3d at 850

(Jones, J., concurring). First, “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. Id. at 851 (Jones, J.,

concurring). These declarations state women may receive abortions without

consulting the physician beforehand and without receiving follow-up care after, see,

e.g., J.A. 1550, that women may not be given information about the abortion

procedure or its possible complications, see, e.g., J.A. 1541, and that the abortion

clinic may function “like a mill.” J.A. 1556. The declaration by Dr. John Thorp, a

board-certified obstetrician and gynecologist, further statesthat “coercion or pressure

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prior to the termination of pregnancy occurs with frequency.” J.A. 973. One woman

declared her husband threatened to kick her out of the house and take her children

away forever if she did not abort a pregnancy that was the product of an affair. J.A.

1555.

The declarationsfromwomenwho have had abortions also show abortions may

cause adverse consequences for the woman’s health and well-being. One woman

reported that “[t]he negative effects of my abortion resulted in ten years of mental and

emotional torment.” J.A. 1533. Another reported she “suffered for years from

depression, anxiety, panic attacks, low self esteem” and “suicidal ideation.” J.A.

1519. Yet another reported her abortion caused “numerous female health issues,

including an ectopic pregnancy, chronic bladder infections, debilitating menstrual

cycles, cervical cancer and early hysterectomy.” J.A. 1525. Dr. Obritsch also

explained some studies support a connection between abortion and breast cancer. 

J.A. 340. 

We further observe that the pseudonymously named plaintiffs in two of the

Supreme Court’s foundational abortion cases later advocated against those very

decisions. Norma McCorvey, the “Jane Roe” of Roe v. Wade, sought relief from the

judgment in her case on the ground that changed factual and legal circumstances

rendered Roe unjust. See McCorvey, 385 F.3d at 850 (affirming denial of

McCorvey’s Federal Rule of Civil Procedure 60(b) motion). Sandra Cano, the “Mary

Doe” of Doe v. Bolton, 410 U.S. 179 (1973), Roe’s companion case, similarly sought

relief from the judgment in her case. See Cano v. Baker, 435 F.3d 1337, 1342 (11th

Cir. 2006) (per curiam) (affirming denial of Cano’s Rule 60(b) motion). Cano also

filed an amicus brief in this case arguing “that abortion is psychologically damaging

to the mental and social health of significant numbers of women.” Women Injured

By Abortion, et al., Br. of Amici Curiae, at 5; see also Gonzales, 550 U.S. at 159

(citing Cano’s amicus brief in that case). McCorvey’s and Cano’s renunciations call

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into question the soundness of the factual assumptions of the cases purportedly

decided in their favor.

Finally, the State argues that, by enacting a law that permits parentsto abandon

unwanted infants at hospitals without consequence, it has reduced the burden of child

care that the Court identified in Roe. See N.D. Cent. Code § 50-24.1-15; Roe, 410

U.S. at 153 (“Mental and physical health may be taxed by child care. There is also

the distress, for all concerned, associated with the unwanted child, and there is the

problem of bringing a child into a family already unable, psychologically and

otherwise, to care for it.”).

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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IV. 

For the foregoing reasons, we affirm the district court’s grant of summary

judgment to the plaintiffs and the permanent injunction of H.B. 1456. 5 6

______________________________

Because we affirmthe grant ofsummary judgment to the plaintiffs, we decline

5

to address the parties’ arguments about whether H.B. 1456 violates the Equal

Protection Clause.

Although the North Dakota CenturyCode contains a presumptive severability

6

clause, see N.D. Cent. Code § 1-02-20, we decline to consider whether H.B. 1456’s

heartbeat testing requirement is severable from its abortion restriction because the

State has not argued for severability. See Mont.-Dakotas Utils. Co. v. Johaneson, 153

N.W.2d 414, 424 (N.D. 1967) (discussing severability under North Dakota law). We

note that H.B. 1456 does not require the physician to inform the pregnant woman

whether her unborn child possesses a detectable heartbeat. See Edwards v. Beck, 8

F. Supp. 3d 1091, 1098 (E.D. Ark. 2014) (finding that Arkansas’s heartbeat testing

requirement was severable from its abortion restriction where the law in question

required the physician to inform the pregnant woman that her unborn child possessed

a detectable heartbeat and of the statistical probability of bringing the unborn child

to term).

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