Judge overturns North Dakota’s near-total abortion ban

A North Dakota judge struck down that state’s near-total ban on abortion on Thursday, saying the state constitution gives women a “fundamental right to choose abortion” before fetal viability. Restrictions on that right is “a violation on medical freedom,” he ruled.

State District Judge Bruce Romanick declared the law, enacted by the legislature last year, “unconstitutionally void for vagueness.” The statute made the procedure illegal in all cases except rape or incest when the woman has been pregnant for less than six weeks or when the pregnancy poses a serious physical health threat. Doctors and other health care professionals found to be in violation of the law could be charged with a felony - and then face up to five years in prison and a maximum fine of $10,000 fine.

In the very conservative state, where lawmakers have twice passed bans that courts subsequently overturned, the victory for abortion rights supporters was a bittersweet one. North Dakota no longer has any abortion clinic; its one-time sole provider and plaintiff in the lawsuit, the Red River Women’s Clinic, moved from Fargo last year to Moorhead, Minn.

“This is a win for reproductive freedom and means it is now much safer to be pregnant in North Dakota,” said attorney Meetra Mehdizadeh of the Center for Reproductive Rights, which argued the case. “Hospitals and doctors no longer have their hands tied and can provide abortions to patients with complications.”

But she noted the challenge moving forward with no regular abortion providers, saying the ban’s damage “cannot be repaired overnight. … Clinics are medical facilities that need to acquire doctors, staff, equipment - they can take years to open, like most health care centers.”

Eighteen states currently ban abortion completely or after six weeks of pregnancy, the point before many women know they are pregnant. While most of those bans have narrow exceptions to save the life of the pregnant patient, those exceptions have not been working in practice. Doctors often say they are uncertain who qualifies for the exceptions and terrified to move forward with the procedure given many bans’ threat of prison for providers who violate the ban.

The state had argued for dismissal of the case given the Red River Women’s Clinic departure, and Romanick had canceled a trial set for August.

In his decision, he referred to the state constitution’s guarantees of “life and liberty” among inalienable rights. The year-old ban “infringes on a woman’s fundamental right to procreative autonomy.” Moreover, he continued in his 24-page order, its provisions “are not narrowly tailored to promote women’s health or to protect unborn human life.”

The state attorney general did not immediately comment on the ruling, but the executive director of North Dakota Right to Life pledged that the case would be appealed to the North Dakota Supreme Court.

“We are disheartened by the news, but we did expect it,” Bridget Turbide said. “We are going to keep working and fighting for this issue.”

Five minutes across the state border, the director of the Red River Women’s Clinic said staff there were “very pleased.” At the same time, Tammi Kromenaker acknowledged the upheaval of the clinic’s hard decision to move.

“North Dakota still has a huge amount of restrictions and state mandated laws,” she said. “Minnesota has welcomed us, and this is our home now.”