Following the U.S. Supreme Court’s 2022 ruling that overturned *Roe vs. Wade*, then-North Dakota Governor Doug Burgum, a Republican, expressed his approval, stating that “This decision is a victory for the many North Dakotans who have fought so long and so hard to protect unborn children in our state.”
The legislation aims to “protect fetuses from abortion during pregnancy, except in cases necessary to save the mother’s life or other specific situations.”
While Burgum’s declaration of victory was somewhat accurate, it was certainly premature for North Dakota. The state officially banned abortions only recently, on a Friday.
Background
The decision led to a law enacted in 2007 that classified performing an abortion in North Dakota as a Class C felony, with exceptions for saving the mother’s life, and in cases of rape or incest.
Before the law took effect, abortion providers at the Red River Women’s Clinic relocated their operations from Fargo to Minnesota and successfully filed a lawsuit to obtain an injunction.
Months later, following a ruling from Judge Bruce Romanik that blocked the law, the North Dakota Supreme Court decided to put the abortion ban on hold while legal challenges concerning its constitutionality were underway.
Chief Justice John Jensen pointed out that abortion advocates argued there exists a fundamental right to abortion in life-saving situations, suggesting that the law could face legal challenges because it lacks narrow design for strict scrutiny.
At that time, Republican state Senator Jeanne Myrdal, who was previously the head of NDChoose Life, introduced laws that repealed and replaced the 2007 Act. Her Senate Bill 2150 passed through both the North Dakota House and Senate with significant support and received Burgum’s approval in April 2023.
Despite these changes, abortion activists who had originally challenged the law were not giving up. They filed an amended complaint asking the same judge, who had previously issued the injunction, to declare the ban unconstitutional based on North Dakota’s constitution.
Romanik concurred, arguing on September 12, 2024, that the law was “invalid for ambiguity” and contradicted the North Dakota Constitution, which reportedly assures a fundamental right to abortion before viability.
Subsequently, North Dakota’s Attorney General Drew H. Wrigley managed to appeal Romanik’s ruling, propelling the case further into the courts.
Final Outcome
The North Dakota Supreme Court eventually ruled, confirming a blanket ban on abortions. Three of the five justices deemed the law “unconstitutionally vague,” but the court’s constitution mandates a minimum of four justices to agree on such a ruling before a law can be declared unconstitutional.
In a dissenting opinion, Judge Jerrod Tufte argued that the state district court made errors in labeling the law as unconstitutionally vague while also asserting that the state constitution’s protections for abortion rights were overly broad, conflicting with Senate Bill 2150.
Pro-abortion advocates reacted with dismay to the formalization of North Dakota’s stance on abortion. “This decision is a devastating loss for pregnant North Dakotans,” stated Meetra Mehdizadeh, a senior attorney at the Center for Reproductive Rights. “As the majority of the court found, this cruel and confusing ban is incomprehensible to physicians.”
Tammy Klomenaker, executive director of the Red River Women’s Clinic, echoed this sentiment, claiming that “making abortion illegal only makes it harder to get an abortion.”
On the other hand, pro-life activists were thrilled with the outcome.
Ingrid Duran, the state legislative director for Citizens Right to Life, welcomed the ruling, emphasizing that the law “protects the fetus during pregnancy from abortion, except to prevent the death of the mother or other exceptions.”
Myrdal, who introduced the bill, expressed her joy, saying, “I’m thrilled and grateful that two highly respected judges see the truth on this issue and recognize that this is completely constitutional for mothers, fetuses, and their subsequent children.”
