The North Dakota Supreme Court on Thursday upheld a lower court ruling that blocked the state’s abortion ban from going into effect, finding that the North Dakota constitution contains a fundamental right to abortion to preserve the life and health of the mother.
The ruling prevents the state from enforcing its “trigger law” for the time being. However, the lower court’s injunction on the abortion ban is temporary, put in place to maintain the status quo while the case is decided on the merits.
The state Supreme Court noted in Thursday’s opinion that the North Dakota constitution gives its citizens the “right to enjoy and defend life and a right to pursue and obtain safety,” which it found includes that “a pregnant woman has a fundamental right to obtain an abortion to preserve her life or her health.”
The state’s abortion ban, passed by the state legislature in 2007 and “triggered” by the overturning of Roe v. Wade last year, makes it a felony to provide an abortion. It includes exceptions for sexual assault, incest and preventing the death of the mother.
The North Dakota Supreme Court found that the law unnecessarily restricts a woman’s access to an abortion to preserve her life or health, suggesting that the Red River Women’s Clinic has a substantial likelihood of succeeding on the merits of its case and weighing in favor of the injunction.
“[The abortion ban] criminalizes abortions performed even if the abortion is to preserve the life or health of the woman,” the opinion said. “The statute requires a physician who performs a life-preserving abortion to face prosecution of a class C felony, and if prosecuted prove by a preponderance of the evidence the abortion was necessary to save the life of the woman.”
North Dakota Attorney General Drew Wrigley, who brought the case, slammed the decision for finding “there is now also an un-defined ‘heath’ exception to abortion regulation.”
“Our Supreme Court did this without explicit support from our state Constitution, and without support from legislative enactments in our history of abortion regulation,” Wrigley said in a statement. “In so doing, North Dakota’s Supreme Court appears to have taken on the role of a legislative body, a role our constitution does not afford them.”
However, Wrigley added that the state legislature is working to rewrite North Dakota’s abortion laws and “will now have the opportunity to enact the will of North Dakotans, aware of the latest North Dakota Supreme Court pronouncement.”