The North Dakota Supreme Court upheld a lower court’s decision to block a state ban on abortion, saying the state constitution protects abortion rights in some situations.
The ruling means abortion will remain legal in the state until almost 22 weeks after a woman’s last period while the case is heard in a lower court.
While the Supreme Court’s decision is not the final word on the matter, it is notable for its analysis of the state’s constitution. The court went beyond the narrow question it was asked: whether the lower court judge had exceeded his powers in blocking the ban.
In a majority opinion, the ruling said the judge was within his rights but added that the state constitution protects “the right to enjoy and defend life and the right to seek and obtain safety.” , which includes a pregnant woman’s right to “obtain security” including an abortion to preserve her life or health.”
State constitutions have become important arbiters in the nation’s abortion struggles from state to state. Settlement of the Roe v. Wade through the US Supreme Court last year referred the abortion issue to the states for decision. Since then, lawsuits have been filed in about a dozen states that have banned abortion, with abortion rights advocates arguing that the bans are unconstitutional under state guarantees of privacy, health, liberty or family planning.
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So far, two state supreme courts have made final decisions, and they have been divided: in South Carolina, abortion was included in constitutional protections; Idaho ruled that its constitution did not protect the process.
In North Dakota, state law banning nearly all abortions was blocked three times last year by Judge Bruce A. Romanick of Burleigh County District Court after North Dakota’s sole abortion provider, the Red River Women’s Clinic, filed a lawsuit challenging the ban last June had submitted.
Judge Romanick first issued an injunction against the ban a day before it went into effect in July, then extended the ban in August and October, saying the North Dakota Constitution protects abortion rights.
In a relatively rare legal maneuver, North Dakota Attorney General Drew Wrigley filed a motion asking the Supreme Court to determine whether Judge Romanick had abused his discretion by blocking the enactment of the ban while the trial proceeded .
Four of the five Supreme Court Justices were appointed by Gov. Doug Burgum, a Republican, and one was chosen in a bipartisan election.
Mr. Wrigley, who supports the abortion ban, said the state Supreme Court “appears to have assumed the role of a legislative body, a role our Constitution does not allow them.”
The court also said that the state legislature has the authority to regulate abortion, but that in the case seeking to overturn the ban, pro-choice advocates “showed probable success in the cause that in the limited cases there is a fundamental right to abortion for life. saving and health-preserving circumstances, and the law is not narrow enough to stand up to rigorous scrutiny.”
Lawmakers and policymakers in North Dakota have been awaiting the Supreme Court decision since the November hearing.
A bill to be considered and to go into effect if the Supreme Court upheld the lower court’s injunction was introduced in January by Republican state Senator Janne Myrdal. The bill would ban abortions except when a pregnant woman’s life is in danger. The law also provides exceptions in cases of rape or incest up to the sixth week of pregnancy, before most people know they are pregnant. The bill would also make it a misdemeanor for doctors performing abortions that violate the law.
The Senate passed the law overwhelmingly in January. A key House of Representatives committee also signed the bill, which now awaits a vote by the full House of Representatives.
The North Dakota attorney general’s office commended lawmakers for moving forward the new bill to limit abortion access, saying lawmakers “will now have an opportunity to enforce the will of North Dakotans.”
The Red River Women’s Clinic stopped offering abortions in the state, instead moving a short drive across the border to Moorhead, Minnesota, in August.
But lawyers representing the clinic say it’s important to ensure the ban doesn’t take hold, so that pregnant patients can be aborted in medical emergencies by hospitals and by their doctors.
“This law forces physicians to defer urgent medical care to patients and forces patients to take these unnecessary medical risks,” said Genevieve Scott, senior counsel at the Center for Reproductive Rights.
Ms Scott said the state’s law offers extremely narrow exceptions for medical emergencies. Current law allows an abortion if the pregnant woman’s life is threatened, but a doctor cannot perform an abortion to prevent serious injury. Many other states that currently ban abortion offer exceptions for cases where a patient’s “essential bodily functions” are at risk.
Ms Scott said the ban would have prevented doctors from treating cases of miscarriage, ectopic pregnancy and complications where there was no chance of a fetus surviving.