N. Dakota Supreme Court Blocks Abortion Ban; Says Constitution Protects Procedure

The court’s opinion is not the final word on the case, but it upheld a lower court’s decision to suspend the state’s abortion ban.

A judge in a black robe sits in court, facing a lawyer.
Judge Bruce A. Romanick, left, of the Burleigh County District Court, during a hearing regarding banning abortions in August.Credit...Mike Mccleary/The Bismarck Tribune, via Associated Press

North Dakota’s Supreme Court upheld a lower court’s decision to block a ban on abortions in the state, and said the state Constitution protects abortion rights in some situations.

The ruling means abortion in the state remains legal until nearly 22 weeks after a women’s last period, while the case proceeds in a lower court.

Though the state Supreme Court’s decision is not the final word on the matter, it is notable for its analysis of the state Constitution. The court went beyond the narrow question it was asked: whether the lower court judge had overstepped his power in blocking the ban.

In a majority opinion, the ruling said that judge was within his rights but added that the state Constitution protects “the right to enjoy and defend life and a right to pursue and obtain safety,” which includes the right of a pregnant woman to “obtain an abortion to preserve her life or her health.”

State constitutions have become key arbiters in the nation’s state-by-state abortion battles. The overturning of Roe v. Wade by the U.S. Supreme Court last year kicked the question of abortion to the states to decide. Since then, lawsuits have been filed in about a dozen states that have banned abortion, with abortion rights lawyers arguing that the prohibitions are unconstitutional under state guarantees of privacy, health, liberty or family planning.

So far, two state Supreme Courts have made final decisions, and they were split: South Carolina ruled abortion was included in its constitutional protections; Idaho ruled its Constitution did not protect the procedure.

In North Dakota, the state law prohibiting nearly all abortions was blocked three times last year by Judge Bruce A. Romanick of the Burleigh County District Court, after North Dakota’s sole abortion provider, Red River Women’s Clinic, filed a lawsuit against the ban last June.

Judge Romanick first issued a temporary restraining order against the ban a day before it was set to take effect in July, then extended the ban in August and October, saying the North Dakota Constitution protected the right to abortion.

In a relatively rare legal maneuver, the North Dakota attorney general, Drew Wrigley, filed a motion asking the high court to determine if Judge Romanick had abused his discretion by blocking the ban from taking effect while the court case proceeds.

Four of the five justices on the state Supreme Court were appointed by Gov. Doug Burgum, a Republican, and one was elected in a nonpartisan election.

Mr. Wrigley, who supports the abortion ban, said the state’s high court “appears to have taken on the role of a legislative body, a role our Constitution does not afford them.”

The court also said the state legislature had the authority to regulate abortion but that the abortion rights advocates in the case seeking to overturn the ban “demonstrated likely success on the merits that there is a fundamental right to an abortion in the limited instances of life-saving and health-preserving circumstances, and the statute is not narrowly tailored to satisfy strict scrutiny.”

Legislators and policymakers in North Dakota have been anticipating the Supreme Court’s decision ever since oral arguments were presented in November.

One bill under consideration that was intended to go into effect if the Supreme Court upheld the lower court’s injunction was introduced in January by the State Senator Janne Myrdal, a Republican. The bill would ban abortion, except when a pregnant woman’s life is in danger. The bill would also allow for exceptions in cases of rape or incest up until six weeks of pregnancy, before most people know they are pregnant. Under the bill, doctors who perform abortions which violate the law could face misdemeanor or felony charges.

The Senate overwhelmingly passed the bill in January. A key House committee has also signed off on the bill, which now awaits a vote by the full House.

The North Dakota attorney general’s office commended the legislature for advancing the new bill restricting access to abortion, saying lawmakers “will now have the opportunity to enact the will of North Dakotans.”

Red River Women’s Clinic stopped offering abortions in the state, instead moving a short drive across the border to Moorhead, Minn., in August.

But attorneys representing the clinic say it is important to ensure that the ban does not take effect, so that pregnant patients facing medical emergencies can receive abortions in hospitals and from their doctors.

“This law forces physicians to delay urgent medical care to patients and forces patients to endure these unnecessary medical risks,” said Genevieve Scott, senior counsel at the Center for Reproductive Rights.

Ms. Scott said the state’s law offers extremely narrow exceptions for medical emergencies. Under the current law, abortion is allowed if the pregnant woman’s life is threatened, but a doctor cannot perform an abortion to prevent serious injury. Many other states where abortion is currently prohibited offer exceptions for cases where there is a threat to a patient’s “major bodily function.”

Ms. Scott said the ban would have prevented physicians from providing care in cases of miscarriage, ectopic pregnancy and complications where there was no chance of a fetus surviving.