Abortion is illegal again in North Dakota after court reverses a judge’s earlier decision

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BISMARCK, N.D. (AP) — Abortion is again illegal in North Dakota after the state’s Supreme Court on Friday couldn’t muster the required majority to uphold a judge’s ruling that struck down the state’s ban last year.

The law makes it a felony crime for anyone to perform an abortion, though it specifically protects patients from prosecution. Doctors could be prosecuted and penalized by as much as five years in prison and a $10,000 fine.

Three justices agreed that the ban is unconstitutionally vague under the state constitution. The other two justices said the law is not unconstitutional.

The state constitution requires at least four of the five justices to agree for a law to be found unconstitutional, a high bar. Not enough members of the court joined together to affirm the lower court ruling.

In his opinion, Justice Jerod Tufte said the natural rights guaranteed by the state constitution in 1889 do not extend to abortion rights. He also said the law “provides adequate and fair warning to those attempting to comply.”

North Dakota Republican Attorney General Drew Wrigley welcomed the ruling, saying, “The Supreme Court has upheld this important pro-life legislation, enacted by the people’s Legislature. The Attorney General’s office has the solemn responsibility of defending the laws of North Dakota, and today those laws have been upheld.”

Republican state Sen. Janne Myrdal, who introduced the 2023 legislation that became the law banning abortion, said she is “thrilled and grateful that two justices that are highly respected saw the truth of the matter, that this is fully constitutional for the mother and for the unborn child and thereafter for that sake.”

The challengers called the decision “a devastating loss for pregnant North Dakotans.”

“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,” Center for Reproductive Rights senior staff attorney Meetra Mehdizadeh said. “Abortion is health care, and North Dakotans deserve to be able to access this care without delay caused by confusion about what the law allows.”

The ruling means access to abortion in North Dakota will be outlawed. Even after a judge had earlier struck down the ban last year, the only scenarios for a patient to obtain an abortion in North Dakota had been for life- or health-preserving reasons in a hospital.

The only abortion provider relocated in 2022 from Fargo to nearby Moorhead, Minnesota.

Justice Daniel Crothers, one of the three judges to vote against the ban, wrote that the district court decision wasn’t wrong.

“The vagueness in the law relates to when an abortion can be performed to preserve the life and health of the mother,” Crothers wrote. “After striking this invalid provision, the remaining portions of the law would be inoperable.”

North Dakota’s newly confirmed ban prohibits the performance of an abortion as a felony crime. The only exceptions are for rape or incest in the first six weeks — before many women know they are pregnant — and to prevent the mother’s death or a “serious health risk” to her.

North Dakota joins 12 other states enforcing bans on abortion at all stages of pregnancy. Another four bar it at or around six weeks gestational age.

Judge Bruce Romanick had struck down the ban the GOP-led Legislature passed in 2023, less than a year after the U.S. Supreme Court overturned Roe v. Wade and opened the door to the state-level bans, largely turning the abortion battle to state courts and legislatures.

The Red River Women’s Clinic — the formerly sole abortion clinic in North Dakota — and several physicians challenged the law. The state appealed the 2024 ruling that overturned the ban.

The judge and the Supreme Court each denied requests by the state to keep the abortion ban in effect during the appeal. Those decisions allowed patients with pregnancy complications to seek care without fear of delay because of the law, Mehdizadeh previously said.