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Abortion Providers, North Dakota Tee Up Case Over Near-Total Ban

Nov. 22, 2022, 6:33 PM

The fate of a near-total ban on abortion in North Dakota is now in the hands of the state’s top court, which will hear oral arguments Nov. 29 on whether to lift a lower court’s order blocking the ban’s enforcement.

Access Independent Health Services, Inc., which operates the Red River Women’s Clinic, and Attorney General Drew Wrigley (R) set up their arguments in briefs urging the North Dakota Supreme Court to, respectively, leave the injunction in place for now or allow the state to enforce the ban pending litigation over its validity.

At issue is a “trigger” law passed by state lawmakers in 2007 that was intended to take effect after the US Supreme Court issued its mandate in Dobbs v. Jackson Women’s Health Organization, overturning Roe v. Wade and its progeny. With abortion no longer protected under the federal constitution, the state tried to implement a ban that criminalizes abortions at every stage of pregnancy, without exception. The law provides affirmative defenses for medical necessity and pregnancies resulting from rape or incest.

Presiding Judge Bruce A. Romanick of the Burleigh County District Court blocked the ban from taking effect three times. The first time, he found that Wrigley’s declaration of its effective date was premature. The second and third times, Romanick said the harm the ban would cause North Dakota’s citizens outweighed any harm that delaying its enforcement would have on the state and that the ban likely violated the state constitution.

Wrigley sought a supervisory writ from the supreme court, a procedural device used to correct errors and prevent injustices when there’s no other way to do so. He asked the court to lift Romanick’s injunction so that the state can enforce the ban while the case proceeds. Red River and co-plaintiff Dr. Kathryn Eggleston told the court Monday that no injustice will result if the ban remains unenforceable pending litigation.

Temporarily blocking a law that’s probably unconstitutional isn’t an injustice, the plaintiffs said. And, in any event, Wrigley’s proper course was to wait for a final judgment and appeal, not request a supervisory writ, they said. Wrigley hasn’t produced evidence showing an immediate risk of harm, they said.

Additionally, Romanick properly determined that the state would suffer little harm and correctly decided that the plaintiff have a substantial likelihood of winning on their claim because the trigger law isn’t rationally related to the state’s stated goal of protecting human life, given that it increases risks for pregnant people, the plaintiffs said.

Wrigley maintained that the injunction must be put on hold because Romanick misapplied precedent when deciding on the plaintiffs’ likelihood of winning. Instead of basing the injunction on a finding that the plaintiffs have a “substantial probability” of success, the trial judge blocked the ban’s enforcement because “there is a real and substantial question” about the ban’s validity under the North Dakota constitution, he said. That was an abuse of discretion, he said.

Romanick also improperly assumed the ban is unconstitutional, Wrigley said in his brief Monday.

Center for Reproductive Rights; Weil, Gotshal & Manges LLP; and Dickson Law Office represent Red River. The North Dakota Attorney General’s Office represents the state.

The case is Wrigley v. Romanick, N.D., No. 20220260, briefs filed 11/21/22.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at mpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Carmen Castro-Pagán at ccastro-pagan@bloomberglaw.com