North Dakota Supreme Court on Thursday maintained a hold on the state's trigger abortion law, stating it is unconstitutional. File Photo by Bonnie Cash/UPI | License Photo
March 17 (UPI) -- North Dakota's Supreme Court has upheld a lower court's hold on the state's near-total abortion ban, ruling that access to the controversial medical procedure in some circumstances is constitutional.
The ruling is the latest in a series of court battles nationwide involving abortion restrictions Republican-led states have sought to implement following the conservative-leaning Supreme Court revoking federal protections for abortion last summer when justices overturned Roe vs. Wade.
North Dakota limits abortions to 21 weeks, six days of a pregnancy, but lawmakers in 2007 passed legislation to criminalize nearly all abortions as a class C felony once the landmark 1973 ruling was no more the rule of land. Exceptions were in place if the abortion was necessary to prevent the death of the pregnant person and if the pregnancy was the result of "gross sexual imposition," abuse or incest.
Implementation of the law forced its then-only abortion provider, Red River Women's Clinic, to move shop across the river to Moorhead, Minn., and seek litigation against it. In July, the Red River Women's Clinic won injunction against the trigger ban by arguing that it went against the state's Constitution -- a tactic that several lawsuits have taken to challenge their recently enforced state bans.
The state then took the case to North Dakota's high court asking it to rule that the district court abused its discretion in awarding the injunction on the grounds that the plaintiffs failed to prove they had a substantial likelihood of success on merit -- which the state's supreme court disagreed with Thursday.
"The North Dakota Constitution explicitly provides all citizens of North Dakota the right of enjoying and defending life and pursuing and obtaining safety. These rights implicitly include the right to obtain an abortion to preserve the woman's life or health," wrote Chief Justice Jon Jensen in the court's majority ruling.
The court continued that the state's history and traditions support this conclusion, stating that even prior to statehood when abortions were criminalized, abortions were not a criminal act if done to protect the life and health of the pregnant person.
"Fundamental rights are those which are deeply rooted in history and tradition and are implicit in the concept of ordered liberty," Jensen wrote. "North Dakota's history and traditions as well as the plain language of its Constitution, establish that the right of a woman to receive an abortion to preserve her life or health was implicit in North Dakota's concept of ordered liberty before, during and at the time of statehood."
The Center for Reproductive Rights, which filed the case on behalf of Red River Women's Clinic, celebrated the victory, stating the court was right to stop what it describes as one of the country's most extreme abortion bans 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," Nancy Northup, president and chief executive of the Center for Reproduction Rights, 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.
"We will continue to work tirelessly to protect North Dakotans and the fundamental human rights of all people."
North Dakota's Republican attorney general, Drew Wrigley, lashed out at the state's high court following the decision, accusing it of going against the wishes of the legislature and acting on its own.
"The North Dakota Supreme Court today chooses a path of its very own, by holding there is now also an un-defined 'health' exception to abortion regulation," he said in a statement.
"Our supreme court did this without explicit support from out state Constitution, and without support from legislative enactments in our history of abortion regulation. In so doing, North Dakota's Supreme Court appears to have taken on the role of a legislative body, a role our constitution does not afford them."
He added that the decision does not bar lawmakers from regulating abortion through enactments and that the state's legislature has spent the last two months working at reshaping its abortion ban law.
"They will now have the opportunity to enact the will of North Dakotans, aware of the latest North Dakota Supreme Court pronouncement," he said.