North Dakota Supreme Court ruling keeps the state's abortion ban on hold for now
Updated March 16, 2023 at 5:32 PM ET
BISMARCK, N.D. — The North Dakota Supreme Court ruled Thursday that a state abortion ban will remain blocked while a lawsuit over its constitutionality proceeds.
The ban was designed to take effect once the U.S. Supreme Court overturned Roe v. Wade. But a district judge had put it on hold this summer while the Red River Women's Clinic (RRWC) pursued a lawsuit arguing the state constitution protected a right to an abortion.
"While the regulation of abortion is within the authority of the legislature under the North Dakota Constitution, RRWC has 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," Chief Justice Jon J. Jensen wrote in the ruling.
The law — one of many abortion-restricting measures passed by state legislatures in anticipation of the high court's decision — includes exceptions to save the life of the mother and in cases of rape or incest.
The Red River Women's Clinic — the state's only abortion clinic — shut its doors this summer and moved operations a short distance from Fargo to Moorhead, Minnesota, where abortion remains legal. But the clinic's owner is still pursuing the lawsuit.
"The court made the right decision and sided with the people of North Dakota today," clinic director Tammi Kromenaker said in a statement. "Those seeking abortion care know what's best for themselves and their families and should be able to access such essential services if and when they need it. While I'm heartbroken that we have been forced to close our doors here in Fargo, we will continue to serve the region at our new clinic in Moorhead, Minnesota."
Messages left with the office of North Dakota Attorney General Drew Wrigley were not immediately returned Thursday.
Wrigley had argued the ban should be enforced while the lawsuit proceeds, saying Burleigh County District Judge Bruce Romanick erred by granting the injunction. Romanick has said that the Red River Women's Clinic had a "substantial probability" of succeeding in its lawsuit, but also said there's no "clear and obvious answer" on whether the state constitution conveys a right to abortion.
Attorneys for the clinic had argued that Romanick's decision to block the ban was proper.
When Romanick blocked the law from taking effect, he acknowledged that the clinic had moved but noted that doctors and hospitals would still be affected by the statute. Under the law, a doctor who performs an abortion would be charged with a felony and then have to prove the procedure was done in cases of either rape or incest or to save the mother's life.
Lawyers for the clinic said the ban and its rules on affirmative defenses may make doctors hesitant "from performing abortions even in a life-threatening situation."
Since the U.S. Supreme Court in June overturned Roe v. Wade, the ruling that protected the right to abortion for nearly five decades, abortion restrictions have been up to states and the landscape has shifted quickly.
Thirteen states are now enforcing bans on abortion at any point in pregnancy and one more — Georgia — bans it once cardiac activity can be detected, or at about six weeks' gestation.
Courts have put on hold enforcement of abortion bans or deep restrictions in Arizona, Indiana, Montana, Ohio, South Carolina, Utah and Wyoming. Idaho courts have forced the state to allow abortions during medical emergencies.
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