North Dakota Court Rules State Abortion Ban Unconstitutional

Today, a North Dakota state court struck down the state’s total abortion ban as unconstitutional. The ban will be enjoined in the coming days. The Center for Reproductive Rights, Weil, Gotshal & Manges LLP, and Gender Justice filed this lawsuit in 2023. Abortion care will now be legal in the state, increasing access for people across the Midwest, especially for those who need lifesaving or health-preserving abortion care. Abortion is also currently illegal in South Dakota, but remains legal in nearby Minnesota and Montana.

“The North Dakota Constitution guarantees each individual, including women, the fundamental right to make medical judgments affecting his or her bodily integrity, health, and autonomy, in consultation with a chosen health care provider free from government interference,” Judge Bruce Romanick’s opinion reads. “This section necessarily and more specifically protects a woman’s right to procreative autonomy – including to seek and obtain a pre-viability abortion.”

“This is a win for reproductive freedom, and means it is now much safer to be pregnant in North Dakota,” says Meetra Mehdizadeh, staff attorney at the Center for Reproductive Rights. “Hospitals and doctors no longer have their hands tied and can provide abortions to patients with complications. However, the damage that North Dakota’s extreme abortion bans have done cannot be repaired overnight. There are no abortion clinics left in North Dakota. That means most people seeking an abortion still won’t be able to get one, even though it is legal. Clinics are medical facilities that need to acquire doctors, staff, equipment—they can take years to open, like most healthcare centers. The destructive impacts of abortion bans are felt long after they are struck down. This is now the second abortion ban that lawmakers have passed that has been struck down in court. We urge North Dakota lawmakers to respect this ruling and the reproductive autonomy of its people.”

In the lawsuit, Plaintiffs asked the court to strike down the ban in its entirety, which the court has decided to do. Plaintiffs argued that the ban was unconstitutionally vague and made it impossible to interpret the confusing language about when medical exceptions were allowed. The ban’s limited and confusing exceptions for health or life gave physicians no clear guidance on how to determine whether a patient was “sick enough” to qualify for abortion care. This left physicians who provided abortions with the threat of having to defend their decision in court if someone were to question the provider’s judgment. Violating the ban was considered a class C felony, punishable by a maximum of five years of imprisonment, a fine of $10,000, or both.

“Today’s decision gives me hope. I feel like the court heard us when we raised our voices against a law that not only ran counter to our state constitution, but was too vague for physicians to interpret and which prevented them from providing the high quality care that our communities are entitled to,” says Tammi Kromenaker, Director of Red River Women’s Clinic, a plaintiff in the case. “Abortion is lifesaving health care; it should not be a crime. I look forward to a new future in North Dakota and hope our lawmakers will finally give up on their crusade to force pregnancy on people against their will. As we see at our clinic every day, pregnancy is complex, and each pregnant person knows what is best for their specific situation.”

Eighteen states currently ban abortion completely or after six weeks of pregnancy—before many know they are pregnant. While most of those bans have very narrow exceptions to save the life of the pregnant patient, those exceptions have not been working in practice. Doctors are unclear who qualifies for the exceptions, and they are terrified to perform any abortions as they face years in prison for violating the bans. In addition to North Dakota, the Center has active lawsuits in Idaho and Tennessee to clarify the “medical emergency” exceptions written into the bans in those states and broaden the circumstances in which physicians can provide abortions.

Earlier this year, the Supreme Court of Texas ruled in another Center lawsuit, Zurawski v. Texas. The state’s high court mostly provided clarity around when pregnant Texans cannot access abortion care, such as for lethal fetal conditions, rather than when they can. The courtrefused to allow abortion care unless a patient has a life-threatening condition.

The lawsuit was filed by the Center for Reproductive Rights, Weil, Gotshal & Manges LLP, and Gender Justice, on behalf of Red River Women’s Clinic, its medical director Dr. Kathryn Eggleston, Dr. Ana Tobiasz, Dr. Erica Hofland, and Dr. Collette Lessard.