North Dakota averages three to four severe winter events per year. Given the legal storm brewing over an abortion ban in the state court, they may exceed expectations this year.
On Friday, January 24, 2024, the North Dakota Supreme Court continued a pause on the state's restrictive abortion ban while the state appeals. With a 3-2 split on the decision, it is too early to say what the end outcome of the case will be.
Sorting Out Abortion Bans
In 2007, North Dakota enacted a trigger ban on abortion that would go into effect if Roe v. Wade were repealed. Abortions would become illegal in North Dakota except for cases involving rape, incest, or the endangerment of the mother's life.
Dobbs v. Jackson Women's Health Organization made that a reality in 2022. The Attorney General attempted to invoke the trigger ban, but was blocked by a North Dakota judge. The issue was litigated up to the North Dakota Supreme Court, which in 2023 found that the North Dakota state constitution provides a right to abortion to preserve a woman's life or health in Wrigley v Romanick.
Soon after, the state legislature repealed the trigger ban and passed a new abortion ban. It was signed into law by Gov. Doug Burgum in April 2023. It banned all abortions that weren't due to rape, incest, or a "serious physical health threat to the mother." It also prohibited the procedure after the sixth week of pregnancy, which is often before many women are aware of their pregnancy.
A lawsuit challenging the ban was filed by the state's lone remaining abortion clinic, Red River Women's Clinic. It was denied in January 2024, but in September District Court Judge Bruce Romanick vacated the ban, stating that it violated the North Dakota state constitution. Romanick wrote that the wording of the ban was too vague for enforcement and that it was an infringement on the medical rights of women.
A stay was put on enforcing the ban until the legal issues were settled.
Courting Dissension
The state appealed the district court's opinion, and that appeal has not yet concluded. However, the state did file a motion to lift the ban while the appeal is ongoing. On January 24, the North Dakota Supreme Court denied the motion.
In addition to keeping the pause in place, the high court's ruling appeared to agree with Romanick that the ban's language requires a much tighter and narrower focus. The opinion stated that the vagaries of the ban's wording could have dire consequences, such as physicians hesitating to use necessary medical procedures for fear of criminal prosecution. They also expressed concern over the exclusion of mental health conditions as a viable reason for an abortion. While this could indicate which direction the court is leaning, it is not a ruling on the merits of the case.
There was also disagreement. The dissenters argued there was little precedent for Romanick to base his ruling on. They also expressed concern regarding the amount of time the ban would be unenforceable during litigation. Oral arguments for the state's appeal have not yet been scheduled but will likely be several months from now, with a final decision months after that.
And Then There Were None
The 3-2 decision sets up an interesting battle. North Dakota law requires four of the five Supreme Court justices to determine a law unconstitutional. The dissenting justices did offer their rationale as to why the law was constitutional. While they are free to change their stance pending oral argument and further briefing, that is probably not the likeliest outcome.
Despite the state's concern over having the ban enforceable during their appeal, there are currently no women's health clinics providing abortion services in North Dakota. Citing concerns over the outcome, Red River Women's Clinic moved to nearby Morehead, Minnesota in 2023. Regardless of the pending decision, the clinic has said that they are unlikely to move back to North Dakota.
Related Resources
- The Practical Impact of Dobbs v. Jackson Women's Health (FindLaw's Federal Courts)
- North Dakota Abortion Laws (FindLaw's State Laws)
- North Dakota Constitution (FindLaw's North Dakota Codes)
