North Dakota judge strikes down the state’s abortion ban and says people have a right to the procedure until viability
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A state judge struck down North Dakota’s ban on abortion Thursday, saying that the state constitution creates a fundamental right to access abortion before a fetus is viable.
In his ruling, state District Judge Bruce Romanick also said that the law violates the state constitution because it is too vague.
Under the judge’s order, abortion would be legal in North Dakota, but the state currently has no clinics performing them, and GOP state Attorney General Drew Wrigley promised to appeal the decision.
The state’s only abortion provider had been the Red River Women’s Clinic in Fargo, but it moved a few miles to Moorhead in 2022, after the U.S. Supreme Court overturned Roe v. Wade and allowed states to ban abortion. Director Tammi Kromenaker said there are no plans to reopen a clinic in North Dakota but Thursday’s decision “gives us hope.”
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“We feel like the court heard our concerns and the physicians in North Dakota’s concerns about a law that we felt went too far,” she said.
But Wrigley said in a statement that the judge’s decision contained “flaws in his analysis.”
“Judge Romanick’s opinion inappropriately casts aside the law crafted by the legislative branch of our government and ignores the applicable and controlling case law previously announced by the North Dakota Supreme Court,” he said.
Romanick was ruling on the state’s request to dismiss a 2022 lawsuit filed by the Red River clinic. After the clinic’s move, the state argued that a trial wouldn’t make a difference. The judge had canceled a trial set for August.
But Romanick cited how North Dakota Constitution’s guarantees “inalienable rights,” including “life and liberty.”
“The abortions statutes at issue in this case infringe on a woman’s fundamental right to procreative autonomy, and are not narrowly tailored to promote women’s health or to protect unborn human life,” Romanick wrote in his 24-page order. “The law as currently drafted takes away a woman’s liberty and her right to pursue and obtain safety and happiness.”
Meetra Mehdizadeh, staff attorney at the Center for Reproductive Rights, which supports abortion rights and challenges state bans, said the ruling “means it is now much safer to be pregnant in North Dakota.” But she said clinics can take years to open.
“The destructive impacts of abortion bans are felt long after they are struck down,” she said.
North Dakota elects both its Supreme Court justices and district court judges, but those contests are nonpartisan. Romanick was first elected a judge in 2000 and has been reelected every six years since, most recently in 2018. Before serving as a judge, he was an assistant state’s attorney in Burleigh County, home to the state capital of Bismarck.
The judge acknowledged in his ruling that in the past, the North Dakota courts had previously relied on federal court precedents on abortion, but said those state precedents had been “upended” by the U.S. Supreme Court’s landmark 2022 abortion decision.
Romanick said he’d been left with “relatively no idea” how the North Dakota Supreme Court would address the issue, and so his ruling was his “best effort” to “apply the law as written to the issue presented” while protecting the fundamental rights of the state’s residents.
“Pregnant women in North Dakota have a fundamental right to choose abortion before viability exists under the enumerated and unenumerated interests provided by the North Dakota Constitution,” the judge wrote.
In many respects, Romanick’s order mirrors one from the Kansas Supreme Court in 2019, declaring access to abortion a fundamental right under similar provisions in that state’s constitution, though the Kansas court did not limit its ruling to before a fetus is viable. Voters in Kansas affirmed that position in an August 2022 statewide vote.
Romanick concluded that the law is too vague because it does not set clear enough standards for determining whether exceptions apply, leaving doctors open to being prosecuted because others disagree with their judgments.
In 2023, North Dakota’s Republican-controlled Legislature revised the state’s abortion laws, making abortion legal in pregnancies caused by rape or incest, but only in the first six weeks of pregnancy. Under the revised law, abortion was allowed later in pregnancy only in specific medical emergencies.
Soon after that, the clinic, joined by several doctors in obstetrics, gynecology and maternal-fetal medicine, filed an amended complaint. The plaintiffs alleged the abortion ban violates the state constitution because it its unconstitutionally vague about its exceptions for doctors, and that its health exception is too narrow.
Romanick acknowledged that when North Dakota became a state in 1889, its founders likely would not have recognized abortion access as a right under the state constitution, but added, “women were not treated as full and equal citizens.”
The judge said that in examining history and tradition, he hopes that people would learn that “there was a time when we got it wrong and when women did not have a voice.”
“This does not need to continue for all time, and the sentiments of the past, alone, need not rule the present for all time,” he wrote.