Split North Dakota Supreme Court upholds state abortion ban
Hillel Aron
(CN) — Three out of five North Dakota Supreme Court justices deemed the state’s abortion ban “unconstitutionally vague” on Friday but without a supermajority in agreement, a law allowing for the prosecution of doctors who perform an abortion will go into effect soon.
The ruling is one justice short of the four-fifths supermajority required to overturn a law passed by the state legislature.
In the ruling authored by Justice Daniel Crothers, the state’s highest court agreed with a lower court judge — who granted summary judgment in 2024 to four doctors and an abortion clinic who sued over the ban, effectively striking it down — that the ban was unconstitutionally vague.
“Just as a vague protest regulation could chill or deter constitutionally protected speech, a vague abortion regulation has the potential to restrict the provision of constitutionally protected medical care,” Crothers wrote. “The vagueness in the law relates to when an abortion can be performed to preserve the life and health of the mother. After striking thisinvalid provision, the remaining portions of the law would be inoperable.”
The state’s abortion ban makes it a crime to perform an abortion, with some limited exceptions for rape or incest in the first six weeks of a pregnancy, as well as “based on reasonable medical judgment which was intended to prevent the death or a serious health risk to the pregnant female.”
The law passed as a “trigger law” in 2007, poised to take effect if the U.S. Supreme Court ever overturned Roe v. Wade, which the nation’s highest court did do in 2022. The plaintiffs argued the law violates physicians due process rights, in part because of the law’s vagueness and unclear language.
On Friday, the three concurring justices saw a contradiction in the “serious health” exception. They considered if the physician had an “an honest but mistaken belief that an abortion was necessary to protect the life or health of a pregnant patient,” asking if the doctor would be guilty of a crime.
“On their face, these conflicting standards make it unclear whether a physician who performs an abortion in good faith will nonetheless suffer criminal penalties,” Crothers wrote. “We make no assessment as to whether or how these laws could be reconciled. For our purposes here, it suffices to say this new legislation has introduced considerable uncertainty in the context of abortions performed with the intent to protect the life or health of a pregnant patient.”
But while two justices — Lisa Fair McEvers and Daniel Narum concurred with Crothers, two justices disagreed.
In the dissent, Justice Jerod Tufte cited North Dakota’s constitutional history, and said it would be incorrect to extend interpretation of it to allow abortions.
“Section 1 does not imply a right to abortion as such, and evolving public opinion on abortion cannot create one — only a constitutional amendment can do that,” he wrote.
He further wrote that the plaintiffs had “presented only hypothetical scenarios and have not demonstrated the statute is vague as applied to any actual conduct.”
For Tufte and joining Justice Jon Jensen, the exceptions were clear.
“The question is whether reasonable medical judgment would conclude there is a probability as opposed to a mere possibility that an abortion would prevent serious physical injury,” wrote Tufte, adding: “Self-inflicted harm is not within the exception.”
It was not immediately clear when exactly the abortion ban would go into effect. But the ruling does mean that North Dakota will join 16 other states with either complete abortion bans, or bans after six weeks of pregnancy.
“This decision is a devastating loss for pregnant North Dakotans," said Meetra Mehdizadeh, a senior attorney at the Center for Reproductive Rights, representing the health care providers who sued. “As a majority of the court found, this cruel and confusing ban is incomprehensible to physicians. The ban forces doctors to choose between providing care and going to prison.”