Clinic, physicians challenge revised North Dakota abortion laws in ongoing lawsuit

BISMARCK, N.D. — A former North Dakota abortion provider challenged one of the nation’s strictest abortion laws Monday, arguing the law “flagrantly violates” a court ruling supporting the right of patients in the state to obtain the procedure to preserve their life or health.

The lawsuit initially filed last year by what was the conservative state’s sole abortion provider seeks to block a law recently approved by the Republican-led Legislature and signed by Gov. Doug Burgum. The law outlaws all abortions except in cases where women could face death or a “serious health risk” or pregnancies caused by rape and incest, but only in the first six weeks, when many women often don’t know they are pregnant.

It seems unlikely that a patient who is pregnant due to rape or incest could get an abortion “within such a narrow time frame” as six weeks, Center for Reproductive Rights attorney Meetra Mehdizadeh told The Associated Press.

Conservative states have been working to restrict abortion access in the wake of the U.S. Supreme Court last year overturning the constitutional right to an abortion. Other states, such as neighboring Minnesota, have moved to protect abortion access.

North Dakota had a so-called trigger ban, passed in 2007, to outlaw virtually all abortions if the Roe v. Wade decision was overturned. The Red River Women's Clinic last year challenged the now-repealed trigger ban as unconstitutional, and on Monday, attorneys for the clinic and several physicians throughout North Dakota filed an amended complaint targeting the new law. The clinic moved from Fargo to neighboring Moorhead, Minnesota, after the Supreme Court's ruling.

Bill sponsors pitched the changes as clearing up language in the state's overlapping abortion laws, including the trigger ban and a 2013 law that sought to ban abortions as soon as cardiac activity is detected.

The new law includes a felony penalty for those who perform an abortion. The penalty excludes patients who undergo the procedure.

The law allows for treatment of ectopic and molar pregnancies, both nonviable complications.

The amended complaint says the new law “prevents pregnant people from accessing necessary, time-sensitive healthcare and threatens their lives, health, and fertility.” The complaint says the law also “flagrantly violates” what the state Supreme Court recently held as “a fundamental right to obtain an abortion to preserve (a patient’s) life or her health.”

Mehdizadeh said it is still "pretty confusing" what the law allows, such as “when people are actually allowed to provide an abortion under the exceptions.”

The new law's death and health risk provisions are narrow, she said. They don't include mental health conditions, which Mehdizadeh said can be caused or exacerbated by pregnancy and are “one of the most common causes of pregnancy-related death.”

North Dakota Attorney General Drew Wrigley said he expected the amended complaint to be filed, and said his office is reviewing it.

Republican state Sen. Janne Myrdal, the bill's sponsor, said she expected the amended complaint, which she hadn't read. She said the judge should dismiss the case and the plaintiffs should sue on the merits of the new law, “instead of amending an old case where the chapter (of state law) is no longer there.”

She attributed the “complaint about six weeks” to “some of the most liberal elements in our state.”

“I hope that if anybody experiences rape that they immediately, immediately go to a hospital and get a rape kit, get it taken care of so we can go after the rapist,” Myrdal said.

A state district court judge last year had temporarily blocked the trigger law and the court in March upheld the decision before the law was repealed.

Chief Justice Jon Jensen wrote in the majority opinion: “The North Dakota Constitution explicitly provides all citizens of North Dakota the right of enjoying and defending life and pursuing and obtaining safety. These rights implicitly include the right to obtain an abortion to preserve the woman’s life or health.”

The Legislature in response to the ruling added the “serious health risk” and molar pregnancy provisions to the bill, and put all of its language into a new chapter of state law. A molar pregnancy is when a tumor forms in the uterus.

Mehdizadeh said placing the law into a new section of code “is essentially an attempt to replace and repackage the trigger ban in defiance of the state’s high court and without any regard to the dangerous consequences to people’s health and lives.”

Myrdal said the move was to help the drafting process and to make the bill clearer.

Burgum, who is seeking the Republican nomination for president, has said the new law "clarifies and refines existing state law ... and reaffirms North Dakota as a pro-life state.”

The amended complaint also adds several physicians licensed in obstetrics, gynecology and maternal-fetal medicine as plaintiffs, because “this ban has vague, confusing, and non-medical language that has left providers without any clarity over when they can provide abortion care, and threatens them with severe punishment if they do,” according to Mehdizadeh.