North Dakota judge will decide whether to throw out a challenge to the state's abortion ban

BISMARCK, N.D. -- Attorneys argued Tuesday over whether a North Dakota judge should toss a lawsuit challenging the state's abortion ban, with the state saying the plaintiffs' case rests on hypotheticals, and the plaintiffs saying key issues remain to be resolved at a scheduled trial.

State District Judge Bruce Romanick said he will rule as quickly as he can, but he also asked the plaintiffs' attorney what difference he would have at the court trial in August.

The Red River Women's Clinic, which moved from Fargo to neighboring Moorhead, Minnesota, filed the lawsuit challenging the state's now-repealed trigger ban soon after the fall of Roe v. Wade in 2022. The clinic was North Dakota's sole abortion provider. In 2023, North Dakota's Republican-controlled Legislature revised the state's abortion laws amid the lawsuit. Soon afterward, the plaintiffs filed an amended complaint, joined by doctors in obstetrics, gynecology and maternal-fetal medicine.

North Dakota outlaws abortion as a felony crime, with exceptions to prevent the mother's death or a “serious health risk” to her, and in cases of rape or incest up to six weeks of pregnancy.

The plaintiffs allege the law violates the state constitution because it is unconstitutionally vague for doctors as to the exceptions, and that its health exception is too narrow.

The state wants the complaint dismissed. Special Assistant Attorney General Dan Gaustad said the plaintiffs want the law declared unconstitutional based upon hypotheticals, that the clinic now in Minnesota lacks legal standing and that a trial won't help the judge.

“You're not going to get any more information than what you've got now. It's a legal question,” Gaustad told the judge.

The plaintiffs want the trial to proceed.

Meetra Mehdizadeh, a staff attorney with the Center for Reproductive Rights, said the trial would resolve factual disputes regarding how the law would apply in various pregnancy complications, "the extent to which the ban chills the provision of standard-of-care medical treatment,” and a necessity for exceptions for mental health and pregnancies with a fatal fetal diagnosis.

When asked by the judge about the trial, she said hearing testimony live from experts, as compared to reading their depositions, would give him the opportunity to probe their credibility and ask his own questions to clarify issues.

In an interview, she said laws such as North Dakota's are causing confusion and hindering doctors when patients arrive in emergency medical situations.

“Nationally, we are seeing physicians feeling like they have to delay, either to run more tests or to consult with legal teams or to wait for patients to get sicker, and so they know if the patient qualifies under the ban,” Mehdizadeh said.

In January, the judge denied the plaintiffs' request to temporarily block part of the law so doctors could provide abortions in health-saving scenarios without the potential of prosecution.

A recent state report said abortions in North Dakota last year dropped to a nonreportable level, meaning there were fewer than six abortions performed in 2023. The state reported 840 abortions in 2021, the year before the U.S. Supreme Court's ruling overturning Roe v. Wade.

The court's decision enabled states to pass abortion bans by ending the nationwide right to abortion.

Most Republican-controlled states now have bans or restrictions in place. North Dakota is one of 14 enforcing a ban on abortion at all stages of pregnancy. Meanwhile, most Democratic-controlled states have adopted measures to protect abortion access.

The issue is a major one in this year’s elections: Abortion-related ballot measures will be before voters in at least six states. Since 2022, voters in all seven states where similar questions appeared have sided with abortion rights advocates.

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Associated Press writer Geoff Mulvihill in Cherry Hill, New Jersey, contributed to this story.