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North Dakota’s Near-Total Abortion Ban Blocked Pending Review

Aug. 26, 2022, 12:32 PM

Abortion continues to be legal in North Dakota for now, as a state court judge blocked a near-total ban while litigation to determine its validity under the state’s constitution moves forward.

Presiding Judge Bruce Romanick of the Burleigh County District Court granted Red River Women’s Clinic’s motion to block the state’s trigger ban. The law was designed to take effect 30 days after the state’s attorney general certified to lawmakers that the US Supreme Court had issued a judgment restoring North Dakota’s ability to prohibit abortion.

Attorney General Drew Wrigley (R) made the required certification in July, after Romanick held premature a certification made just days after the nation’s top court’s June 24 decision in Dobbs v. Jackson Women’s Health Organization overruling Roe v. Wade.

The new certification set an Aug. 26 effective date for the law. But Romanick again stopped it from taking effect, narrowly finding that the harm it would cause to people seeking abortions outweighed any harm to the state.

The purpose of a preliminary injunction is to maintain things the way they are, and abortion has been legal in the state for 50 years, the judge said.

Moreover, it’s difficult to see how delaying the effective date would hurt the state when the law—which was adopted in 2007—has been dormant for the past 15 years, he said.

Open Question

The law’s validity under the North Dakota Constitution is still an open question, the judge said. The state supreme court hasn’t spoken on the issue, he said.

Red River, North Dakota’s only abortion clinic, has moved to Minnesota. But others, including doctors, would be affected by the law even in the clinic’s absence, the judge said. An injunction is still necessary and pertinent, he said.

In its lawsuit, the clinic alleged that the trigger law unconstitutionally deprives patients of their right to life, safety, and happiness—all of which protect a right to abortion—under the North Dakota Constitution.

The action is one in a series of lawsuits using state laws and constitutions to challenge restrictions that would have been unconstitutional under prior law.

Such suits are pending in states, including Idaho, Kentucky, Louisiana, Ohio, Oklahoma, Florida, Utah, and West Virginia. Providers won orders temporarily blocking bans in Utah and South Carolina, but bans in Georgia, Louisiana, and North Carolina have been allowed to take effect.

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 Access Indep. Health Servs., Inc. v. Wrigley, N.D. Dist. Ct., No. 08-2022-CV-1608, 8/26/22.

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; Nicholas Datlowe at ndatlowe@bloomberglaw.com; Carmen Castro-Pagán at ccastro-pagan@bloomberglaw.com