North Dakota court keeps strict abortion ban in place even in cases of medical emergencies

A lawsuit challenging the ban will continue.

January 23, 2024, 5:07 PM

A North Dakota state court denied a request to temporarily block the state's strict abortion ban on Tuesday.

Plaintiffs challenging the ban had asked the court to allow doctors to resume performing abortions to preserve the life or health of a pregnant person, based on their "good-faith medical judgment."

While Burleigh County District Court said it would not block the state's strict ban for now, the court has not yet issued a final decision on whether the ban violates the state constitution.

"The Center for Reproductive Rights filed the challenge in 2023, arguing that the strict exceptions in the ban are too narrow and violate the state constitution. The Court's denial of the injunction is based on the injunctive relief sought and is not a ruling that the ban is constitutional or consistent with pregnant people's rights or wellbeing," the Center for Reproductive Rights said in a statement.

The CRR said that the court will make a final decision on the constitutionality of North Dakota's abortion ban after it hears testimony and evidence in court.

PHOTO: Abortion protesters used chalk to draw messages and artwork on the sidewalk leading to the entrance of the Red River Women's Clinic in downtown Fargo, N.D., July 27, 2022.
Abortion protesters used chalk to draw messages and artwork on the sidewalk leading to the entrance of the Red River Women's Clinic in downtown Fargo, N.D., July 27, 2022.
Dave Kolpack/AP

"Though we are disappointed by today's decision, the court did not reach the constitutional questions at the heart of this case, and we remain confident that we will prevail after the court hears further evidence of how this law harms pregnant North Dakotans," said Meetra Mehdizadeh, a staff attorney at the CRR.

The North Dakota Supreme Court already blocked another ban -- the state's trigger ban on abortion -- which it deemed was unconstitutional because it did not allow exceptions to save the life or preserve the health of a pregnant person.

"The North Dakota Constitution explicitly provides all citizens of North Dakota the right of enjoying and defending life and pursuing and obtaining safety. These rights implicitly include the right to obtain an abortion to preserve the woman's life or health," the court said in a March 2023 opinion.

The trigger ban was set to go into effect, making it a felony to perform an abortion, with exceptions for rape, incest or to save the life of a mother.

In April 2023 -- just one month after that opinion was issued -- state lawmakers adopted another strict abortion ban, which is being challenged in the ongoing lawsuit.

That ban, which is currently in effect, makes performing or aiding an abortion a class C felony, punishable by up to five years in prison and/or a fine of up to $10,000.

While the abortion ban includes an exception to save the life of a mother, plaintiffs argue that the ban keeps patients from being able to access care.

"While the amended abortion ban has an exception for health, the exception is too narrow to allow pregnant people to access care in situations where their health is at risk," the lawsuit argues.

The suit also argues that the ban does not provide a "discernible standard" for when physicians can provide legal abortion care and does not allow them to rely on "good-faith medical judgment" to determine whether an abortion is necessary to protect the life and health of a patient.

The suit also argues that patients with nonviable pregnancies that pose risks to patients' health are unable to get care in North Dakota and have to travel out of state.

State Sen. Janne Myrdal, who sponsored the April 2013 bill, told The Associated Press of the Tuesday ruling: "I think it's common sense what we put in as far as the health exceptions, and it goes with the intent of the legislators, so I applaud this judge for reading into it and realizing that the authority lies with us, as far as writing the law, and interpreting it simply shouldn't be that hard for the physicians."

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