North Dakota Supreme Court Upholds Abortion Restrictions

The Red River Women's Clinic is pictured in downtown Fargo, North Dakota July 2, 2013. Unless pending legal challenges lead the courts to intervene, clinic officials say, the Fargo clinic will be forced to close next month, leaving a more than 800-mile swath of the upper Plains without an abortion provider - a de facto ban on abortion in North Dakota. Picture taken July 2, 2013. |

North Dakota's highest court upheld a state law that restricts the usage of medication abortions, reversing a lower court ruling.

The North Dakota Supreme Court ruled earlier this week that House Bill 1297 did not violate the state constitution, an allegation made by North Dakota's lone abortion clinic.

While three of the five justices concluded that the law was unconstitutional, at least four justices must concur for a law to be struck down as unconstitutional, according to North Dakota's constitution.

"Justice Kapsner and Surrogate Judge Maring have concluded that H.B. 1297 is unconstitutional under the North Dakota Constitution, Chief Justice VandeWalle and Justice Sandstrom have concluded that H.B. 1297 is constitutional under the state constitution, and Justice Crothers has concluded that the state constitutional issue need not be decided," read the Per Curiam section of the decision.

"The effect of the separate opinions in this case is that H.B. 1297 is not declared unconstitutional by a sufficient majority and that the district court judgment permanently enjoining the State from enforcing H.B. 1297 is reversed."

In 2011, North Dakota passed HB 1297, which among other things expanded the legal definition of abortion to include abortion-inducing drugs.

HB 1297 laid out regulations for the usage of FDA-approved abortion-inducing drugs, including that they are given by a physician, administered in the presence of said physician, and that it "satisfies the protocol tested and authorized by the federal food and drug administration and as outlined in the label for the abortion-inducing drug."

Introduced in January of 2011, the bill overwhelmingly passed both houses of the legislature and was signed by Governor Jack Dalrymple in February.

That July, the Center for Reproductive Rights filed a complaint against the law on behalf of Red River Women's Clinic, the only abortion clinic in the state.

"The law restricts the use of mifepristone, misoprostol and other drugs approved by the Food and Drug Administration (FDA) to induce first-trimester abortions," reported Maureen Cosgrove of The Jurist.

"… the complaint alleges [that] the law creates an undue, expensive and unconstitutional burden because women would have to travel long distances to obtain abortions."

Last year, a district court struck down the abortion medication law, arguing that it violated the state constitution. North Carolina appealed the decision, with the state's supreme court hearing arguments last December.

Nancy Northrup, president of the Center for Reproductive Rights, said in a statement earlier this week that she disapproved of the decision.

"Today's decision directly conflicts with courts across the U.S. that have rejected the idea that politicians have any place in the practice of medicine or in women's deeply personal decisions about their pregnancies," said Northrup.

Janne Myrdal, chair of N.D. Choose Life, said in a statement that she supported the decision but that it showed a need for more pro-life legal measures, specifically a ballot initiative known as Measure 1.

Set to be on the North Dakota ballot next Tuesday, Measure 1 reads: "The inalienable right to life of every human being at any stage of development must be recognized and protected."

"This decision is good news for North Dakota women, because it ensures that abortion-causing drugs are used consistent with the protocols of their approval by the FDA," said Myrdal.

"… but it's also a wake-up call to all North Dakotans that we must pass Measure 1 to guarantee that no judge is again able to invent a virtually unlimited right to abortion in our state constitution."

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