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North Dakota Supreme Court keeps in place block on state's abortion ban

Abortion North Dakota
Posted at 8:31 AM, Mar 17, 2023

The North Dakota Supreme Court on Thursday kept in place a lower court order blocking enforcement of the state's trigger law banning abortion while a legal challenge continues, finding the measure likely violated the North Dakota Constitution.

The decision from North Dakota's highest court came in a case brought by an abortion provider, which was once the state's only clinic, after the U.S. Supreme Court overturned Roe v. Wade, unwinding the right to an abortion under the federal constitution and leaving abortion policy to the states. The provider, Red River Women's Clinic, relocated to Minnesota as a result of North Dakota's abortion restrictions.

North Dakota's trigger law was approved by the state legislature in 2007 and makes it a felony for a person to perform an abortion. It includes exceptions for abortions performed as a result of rape or incest, or to save the life of the mother.

But the Red River Women's Clinic argued the trigger ban is unconstitutional, as the North Dakota Constitution provides for a fundamental right to abortion.

Implementation of the ban was tied to the Supreme Court's June decision reversing Roe, but the law has been blocked since late July, when a North Dakota district court granted a request to halt enforcement. After the lower court approved the clinics' request for a preliminary injunction, North Dakota's attorney general asked the state supreme court to intervene and reinstate the trigger ban.

But the state supreme court rejected the state's request to lift the preliminary injunction while the legal fight proceeds, finding the abortion clinics' suit has a substantial likelihood of succeeding.

"The North Dakota Constitution explicitly provides all citizens of North Dakota the right of enjoying and defending life and pursuing and obtaining safety," Chief Justice Jon Jensen wrote in the majority opinion. "These rights implicitly include the right to obtain an abortion to preserve the woman's life or health."

The court found that after reviewing the state's history and traditions and the plain language of the North Dakota Constitution, "it is clear the citizens of North Dakota have a right to enjoy and defend life and a right to pursue and obtain safety, which necessarily includes a pregnant woman has a fundamental right to obtain an abortion to preserve her life or her health."

The North Dakota Supreme Court also ruled that the state's trigger ban is likely unconstitutional, as it "unnecessarily restricts a woman's access to an abortion to preserve her life or health."

The decision from the state high court is a significant victory for abortion rights advocates, who have mounted legal fights challenging abortion restrictions under state constitutions since the Supreme Court rolled back Roe.

Nancy Northrup, CEO of the Center for Reproductive Rights, who filed the suit on behalf of the abortion providers, cheered the North Dakota Supreme Court for its ruling, saying it "rightfully" stopped the ban from taking effect.

"Under the state constitution, North Dakotans are promised the rights to life, liberty, safety, and happiness, all of which protect the right to abortion," she said in a statement. "In state after state, people have made clear that they want this right protected, yet state officials continue to ignore the will of their citizens."

Tammi Kromenaker, director of the Red River Women's Clinic, said the high court made the "right decision" and sided with North Dakotans.

"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," she said in a statement.

More than 12 states have implemented bans or tightened restrictions on abortion access since the U.S.Supreme Court ended the constitutional right to abortion in June 2022.