BISMARCK, N.D. – The North Dakota Supreme Court ruled Thursday that the state’s abortion ban will remain blocked pending a lawsuit over its constitutionality.
The ban was intended to go into effect after the US Supreme Court overturned Roe v. Wade. But a district judge had put it on hold this summer while the Red River Women’s Clinic (RRWC) sued, arguing that the state constitution protects the right to an abortion.
“While the regulation of abortion is within the Legislature’s power under the North Dakota Constitution, RRWC demonstrates probable success on the merits that there is a fundamental right to abortion in the limited cases of life-saving and health-preserving circumstances, and the statute is not narrowly tailored to satisfy strict scrutiny,” wrote Chief Justice John J. Jensen in the decision.
The law – one of many abortion restrictions passed by state legislatures pending the high court’s decision – includes exceptions to save the mother’s life and in cases of rape or incest.
The Red River Women’s Clinic — the state’s only abortion clinic — closed its doors this summer and moved operations a short distance from Fargo to Moorhead, Minnesota, where abortion remains legal. But the owner of the clinic is still fighting the case.
“The court made the right decision and today sided with the people of North Dakota,” clinic director Tammy Kromenacker said in a statement. “Those seeking abortion care know what’s best for them and their families and should be able to access such essential services if and when they need them. While I am heartbroken that we have been forced to close our doors here in Fargo, we will continue to serve the region at our new clinic in Moorhead, MN.”
Messages left with North Dakota Attorney General Drew Wrigley’s office were not immediately returned Thursday.
Wrigley argued the injunction should be enforced while the lawsuit is pending, saying Burley County Circuit Judge Bruce Romanick erred in issuing the injunction. Romanick said the Red River Women’s Clinic has a “significant likelihood” of succeeding in its case, but also said there is no “clear and obvious answer” to whether the state constitution grants a right to abortion.
Lawyers for the clinic argued that Romanik’s decision to block the ban was correct.
When Romanick blocked the law from taking effect, he acknowledged that the clinic had moved, but noted that doctors and hospitals would still be affected by the statute. Under the law, a doctor who performs an abortion will be charged with a crime and must then prove that the procedure was performed in cases of rape or incest, or to save the life of the mother.
Lawyers for the clinic said the ban and its rules on affirmative defenses could make doctors hesitant “to perform abortions even in a life-threatening situation.”
Since the U.S. Supreme Court in June overturned Roe v. Wade, the decision that protected abortion rights for nearly five decades, abortion restrictions have been up to the states, and the situation has changed rapidly.
Thirteen states now impose bans on abortion at any time in pregnancy, and another – Georgia – bans it once a heartbeat can be detected or at about six weeks into the pregnancy.
Courts have delayed implementation of abortion bans or deep restrictions in Arizona, Indiana, Montana, Ohio, South Carolina, Utah and Wyoming. Idaho courts have forced the state to allow abortions during medical emergencies.