A judge strikes down North Dakota's abortion ban and rules that access is protected

BISMARCK, N.D. — A state judge struck down North Dakota's abortion ban Thursday, declaring that broad guarantees of personal liberty in the constitution of his conservative, Republican-dominated state create a fundamental right to abortion before a fetus is viable.

The state's GOP attorney general promised to appeal the decision, which would take effect within a few weeks. North Dakota no longer has any abortion clinics, but legalizing abortion again would affect doctors in hospitals who believe an abortion is necessary when a pregnant patient faces a medical emergency.

Besides ruling that the state constitution protects abortion access, District Judge Bruce Romanick also said that the law is unconstitutional because it is too vague to be enforced fairly. He agreed with critics who said the law wasn't clear how its limited exceptions applied — allowing doctors to be prosecuted if other colleagues later disagreed with their medical decisions.

“We have been made to choose between saving a patient’s life and possibly facing jail time,” Dr. Ana Tobiasz, a fetal-maternal medicine specialist in the state capital of Bismarck, said during a Zoom news conference. “We are finally free to put our patients' health first and offer patients the standard of care without fear of facing criminal prosecution.”

Courts in 10 other states, including California, Illinois and Kansas, have ruled their state constitutions protect access to abortion, according the Center for Reproductive Rights, which challenges bans and restrictions, including in the North Dakota lawsuit before Romanick. But most of those rulings came before the U.S. Supreme Court's Dobbs decision in 2022 overruling Roe v. Wade and allowing states to ban abortion — and one in Oklahoma afterward covered only when a patient's life is in danger.

A week before the Dobbs decision — with its result widely anticipated — the Iowa Supreme Court reversed a previous ruling holding that the state constitution protected abortion. Since Dobbs, top courts in Florida, Idaho and Indiana also have issued similar decisions.

“Most state supreme courts have refused to craft state constitutional rights to pre-viability abortions,” Carolyn McDonnell, litigation counsel for the anti-abortion Americans United for Life. "Instead, they’ve recognized that abortion is an issue for the political branches.”

North Dakota Attorney General Drew Wrigley said in a statement that the judge’s decision contained “flaws in his analysis.”

“Judge Romanick’s opinion inappropriately casts aside the law crafted by the legislative branch of our government and ignores the applicable and controlling case law previously announced by the North Dakota Supreme Court,” he said.

North Dakota's only abortion provider had been the Red River Women's Clinic in Fargo, but it moved a few miles to Moorhead, Minnesota, after the Dobbs decision, when a state “trigger” law banning abortion took effect. The clinic sued, as did several doctors in obstetrics, gynecology and maternal-fetal medicine, including Tobiasz.

In 2023, North Dakota’s Republican-controlled Legislature revised the state’s abortion laws, making abortion legal in pregnancies caused by rape or incest, but only in the first six weeks of pregnancy. Under the revised law, abortion was allowed later in pregnancy only in specific medical emergencies. The clinic and the doctors filed an amended complaint.

Red River clinic Director Tammi Kromenaker said there are no plans to reopen a clinic in North Dakota but Thursday's decision “gives us hope.”

“We feel like the court heard our concerns and the physicians in North Dakota’s concerns about a law that we felt went too far,” she said.

In his ruling, Romanick cited how the North Dakota Constitution guarantees “inalienable rights,” including “life and liberty." Those guarantees in turn protect women's personal autonomy and their ability to make medical decisions and “ultimately control (their) own destiny," he concluded.

“The abortions statutes at issue in this case infringe on a woman’s fundamental right to procreative autonomy, and are not narrowly tailored to promote women;s health or to protect unborn human life,” Romanick wrote in his 24-page order. “The law as currently drafted takes away a woman’s liberty and her right to pursue and obtain safety and happiness.”

In many respects, Romanick’s order mirrors one from the Kansas Supreme Court in 2019, declaring access to abortion a fundamental right under similar provisions in that state’s constitution, though the Kansas court did not limit its ruling to before a fetus is viable. Voters in Kansas affirmed that position in an August 2022 statewide vote, and the court has since issued further rulings bolstering abortion rights.

North Dakota elects both its Supreme Court justices and district court judges, but those contests are nonpartisan. Romanick was an assistant state’s attorney in Burleigh County, home to the state capital of Bismarck, before being elected to his judgeship in 2000. He has been reelected every six years since, the last time in 2018, but is not seeking reelection this year.

The judge acknowledged that when North Dakota became a state in 1889, its founders likely would not have recognized abortion access as a right under the state constitution, but added that only men drafted the document and, “women were not treated as full and equal citizens.”

Romanick said that in examining history and tradition, he hopes people would learn “there was a time when we got it wrong and when women did not have a voice.”

“This does not need to continue for all time, and the sentiments of the past, alone, need not rule the present for all time,” he wrote.

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The spelling of Moorhead, Minnesota, has been corrected.