ND high court asked to lift injunction against abortion ban

An attorney for North Dakota asked the state Supreme Court on Tuesday to strike down an injunction blocking the state’s abortion ban, saying a lower court judge was wrong to grant it.

Matthew Sagsveen, an attorney for the state, told justices that Burleigh County District Judge Bruce Romanick “misconstrued the law” by granting the injunction.

Romanick’s ruling in October means abortion is still legal in North Dakota, though the state’s only clinic — the Red River Women’s Clinic of Fargo — shut down as it challenged the ban and has moved across the border to neighboring Minnesota.

Romanick had said that the Red River Women’s Clinic had a “substantial probability” of succeeding in its lawsuit, but also said there’s no “clear and obvious answer” on whether the state constitution protects a right to abortion.

Sagsveen told the five justices that it doesn’t.

“Abortion isn’t a fundamental right protected by the constitution,” he argued.

A 2007 state law — one of numerous abortion-restriction measures crafted by state legislatures to take effect if the U.S. Supreme Court overturned Roe v. Wade — makes it a felony to perform an abortion unless necessary to prevent the woman’s death or in cases of rape or incest. Violations are punishable by up to five years in prison and a $10,000 fine.

The Red River clinic filed its lawsuit to block the measure shortly after the high court in June overturned Roe v. Wade, the ruling that protected the right to abortion for nearly five decades.

Meetra Mehdizadeh, staff attorney at the Center for Reproductive Rights, a New York-based abortion rights advocacy group that is representing the clinic, said North Dakota’s law is “one of the most extreme and dangerous laws in the nation."

She argued that vacating the injunction would be “extraordinary,” and said patients, doctors and hospitals in North Dakota are still at risk even though the clinic has moved. That's because the law could charge physicians with a felony for performing an abortion, making them afraid to provide care when it may be critical for the life of a mother, she argued.

“Lives and livelihoods will be turned upside down by the law,” Mehdizadeh said.

Since the U.S. Supreme Court reversed Roe v. Wade, abortion restrictions have been up to states and the landscape has shifted quickly. Thirteen states are now enforcing bans on abortion at any point in pregnancy, while one — Georgia — bans the procedure once cardiac activity can be detected, at about six weeks’ gestation, or before many women know they are pregnant.

Courts have put abortion bans or deep restrictions on hold in Arizona, Indiana, Ohio, Montana, South Carolina, Utah and Wyoming. Idaho courts have forced the state to allow abortions during medical emergencies.

North Dakota Chief Justice Jon Jensen said after the near-hourlong proceeding that the court would take the case “under advisement.” He did not give a timeline on a ruling.

Attorney General Drew Wrigley would not speculate if the state’s abortion ban would be immediate if the court lifts the injunction. Mehdizadeh said she suspects it would.

Whether North Dakota’s constitution protects a right to abortion has come before state courts before. A Cass County judge ruled that a 2011 law aimed at regulating medication abortions violated the U.S. Constitution, saying it essentially eliminated a procedure that was still legal nationwide at the time.

The case went to the state Supreme Court in 2014. At the time, two justices said the North Dakota Constitution does not protect abortion rights, two said it does, and one justice said it wasn’t their place to decide. It takes four justices to declare a law unconstitutional, so the lower court ruling was reversed.