North Dakota Seeks to Keep Abortion Ban While Appeal Proceeds at State Supreme Court

North Dakota Supreme Court. (Kyle Martin/For the North Dakota Monitor)

(North Dakota Monitor) -The Attorney General’s Office has asked the North Dakota Supreme Court to keep the state’s abortion ban in effect while it mulls over a lower court’s decision finding the law unconstitutional.

The ban outlawed abortion except when a pregnancy poses a serious health risk to the mother, and in cases of rape or incest during the first six weeks of pregnancy.

The state was taken to court over the ban by Red River Women’s Clinic — once North Dakota’s only abortion clinic before it moved to Moorhead, Minnesota — and a group of reproductive health care doctors.

South Central Judicial District Judge Bruce Romanick last month sided with the plaintiffs, finding the law unconstitutionally vague and a violation of North Dakotans’ rights.

“The law as currently drafted takes away a woman’s fundamental rights to liberty and her fundamental right to pursue and obtain safety and happiness,” he wrote in a September judgment striking down the policy. “The law also impermissibly infringes on the constitutional rights for victims of crimes.”

In an Oct. 17 brief, the state claims it is likely to succeed in its appeal of Romanick’s ruling, which it says contains several analytical flaws. The state also says his order declaring the law unconstitutional and his judgment, which officially repealed the ban, contain differences that warrant putting his decision on hold. Its brief argues the original order establishes a right to abortion before fetal viability, but that this same standard is not present in the judgment, which could confuse medical providers.

Additionally, the state claims the law should be kept in place because it has an interest in preserving unborn life, and that maintaining the status quo while the appeal is heard would protect the public from experiencing regulatory whiplash.

The state the same day filed a notice of appeal to the higher court.

The notice asks the Supreme Court to decide on four issues in its review of the case:

• –Whether Romanick’s analysis of the state constitution was flawed, particularly in his understanding of how the constitution “would have been understood at the time of its ratification”;
• –Whether the law violates reproductive rights and deprives women of life, safety and happiness;
• –Whether the ban infringes on the rights of victims of crimes; and
• –Whether it is unconstitutionally void for vagueness.

In 2023, the North Dakota Supreme Court struck down the state’s previous abortion law, finding that women have a right to seek an abortion for health reasons.

The state in its brief argues that Romanick’s order, which establishes much broader abortion protections, is out of step with this precedent.