North Dakota Supreme Court overturns lower court judge: Pro-life ban reinstated after leftist attempt to block law

In response to the U.S. Supreme Court's 2022 Dobbs ruling overturning Roe v. Wade, then-North Dakota Gov. Doug Burgum (R) stated, "This decision is a victory for the many North Dakotans who have fought so hard and for so long to protect the unborn in our state."

The law 'protects unborn children throughout gestation from abortion, except to prevent the death of the mother as well as other exceptions.'

While Burgum was ultimately right in claiming victory, his celebration was premature as it pertained to the Roughrider State. It was not, after all, until Friday when abortion was formally and finally banned in the state.

Quick background

The overturning of Roe triggered a 2007 law making it a Class C felony to perform an abortion in North Dakota, except to save the life of the mother or in the case of rape or incest.

Just prior to the law taking effect, the abortionists from the Red River Women's Clinic who moved their abortion clinic from Fargo to Minnesota successfully sued to get an injunction.

Months after South Central Judicial District Court Judge Bruce Romanick blocked the law, the North Dakota Supreme Court ruled that the abortion ban would remain blocked while the legal battle over the law's constitutionality proceeded.

Jon Jensen, chief justice on the court, noted that the abortionists had "demonstrated likely success on the merits that there is a fundamental right to an abortion in the limited instances of life-saving and health-preserving circumstances, and the statute is not narrowly tailored to satisfy strict scrutiny."

Republican state Sen. Janne Myrdal, the former head of ND Choose Life, subsequently introduced a similar piece of legislation, which repealed and replaced the 2007 law. Myrdal's Senate Bill 2150 passed the North Dakota House and Senate in landslide votes and was ultimately ratified by Burgum in April 2023.

Desperate as ever to keep abortion legal, the abortionists behind the initial challenge filed an amended complaint asking that the same judge who previously gave them an injunction would deem the ban unconstitutional under the North Dakota Constitution.

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Photo by © Ralf-Finn Hestoft/CORBIS/Corbis via Getty Images

Romanick proved happy to oblige them, stating on Sept. 12, 2024, that the law was "void for vagueness" and that it was violative of the North Dakota Constitution, which supposedly recognizes a fundamental right to choose abortion before viability.

The state kept pressing the issue in court — North Dakota Attorney General Drew H. Wrigley (R) appealed Romanick's decision — and prevailed.

Victory at last

The North Dakota Supreme Court reinstated the abortion ban on Friday. While three of the five justices deemed the ban "unconstitutionally vague," the state constitution requires at least four justices to agree in order to find a law unconstitutional.

In his dissent, which was joined by Jensen, Justice Jerod Tufte said that the state district court erred both in concluding the law was unconstitutionally vague and in concluding that the state constitution protects a right to abortion broad enough to conflict with Senate Bill 2150.

Pro-abortion activists were apoplectic over the codification of the people's will on the matter of abortion in North Dakota.

"This decision is a devastating loss for pregnant North Dakotans," Meetra Mehdizadeh, senior attorney at the Center for Reproductive Rights, said in a statement. "As a majority of the Court found, this cruel and confusing ban is incomprehensible to physicians."

Tammi Kromenaker, executive director of the Red River Women's Clinic, complained that "making it illegal just makes it harder" to get abortions.

Pro-live activists, alternatively, were overjoyed.

Ingrid Duran, the National Right to Life's director of state legislation, welcomed the decision, noting that the law "protects unborn children throughout gestation from abortion, except to prevent the death of the mother as well as other exceptions."

Myrdal, the Republican who introduced the legislation, reportedly said that she is "thrilled and grateful that two justices that are highly respected saw the truth of the matter, that this is fully constitutional for the mother and for the unborn child and thereafter for that sake."

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