The abortion law in North Dakota since the fall of Roe

Many people today are confused about the current state of the law surrounding abortion in North Dakota. This column is meant to clarify where things stand in North Dakota since the U.S. Supreme Court overturned Roe v Wade in 2022 and sent the abortion issue back to the states.  

Do you remember where you were when you heard that the Supreme Court had overturned Roe v Wade? It is one of those moments that leaves a lasting memory. The date was Friday, June 24, 2022, on the solemnity of the Sacred Heart of Jesus. I was at a swimming pool reading a book while visiting my parents in Florida. Several of my kids came running toward me yelling, “Dad, Dad, Roe v Wade was overturned!” I ran to the nearest TV monitor to find out for myself and heard the news anchors announce the news that the Supreme Court had indeed overturned Roe v Wade. It took some time for the news to digest, but it began to sink in that at long last this despicable and poorly reasoned court decision had finally been overturned.  

In North Dakota, the fall of Roe “triggered” the activation of several statutes put into place by our pro-life legislature to prohibit most abortions in our state. Just a few weeks later, the Red River Women’s Clinic, the only abortion center in North Dakota, in July 2022 moved from Fargo to Moorhead, Minn., with that state’s more pro-abortion laws. Shortly afterwards, Red River and several pro-abortion doctors filed a lawsuit against the State of North Dakota seeking to overturn the new abortion law.  

After some legal wrangling between the parties, the lawsuit ended up being appealed to the North Dakota Supreme Court. The Court issued an opinion in March 2023 declaring “the history and traditions of North Dakota support the conclusion that there is a fundamental right to receive an abortion to preserve the life or health of the mother.” From its territorial days up until the Roe regime, North Dakota had banned all abortions except those to save the mother’s life, so it was no surprise for the Court to recognize this exception. It came as a shock, though, that the Court extended this right to abortion also to include protecting the mother’s health. After the decision, the North Dakota legislature revised the statute to pass constitutional muster, and it was signed into law by Governor Burgum.  

Under the North Dakota abortion law, a doctor who performs an abortion is guilty of a Class C felony punishable up to five years in prison and a $10,000 fine unless the abortion falls under certain exceptions. The three exceptions that would allow the doctor to avoid criminal prosecution are in cases where the abortion is (1) necessary to prevent the death of the mother, (2) necessary to prevent substantial physical impairment of a major bodily function, or (3) for the purpose of ending a pregnancy resulting from rape or incest if the unborn child’s gestational age is at six weeks or less. While this is an imperfect law, it does prohibit most abortions in North Dakota.  

To be clear, the Catholic Church condemns all direct abortions, whether willed as an end or as a means to some other end (even saving the mother’s life), as grave violations of the moral law (Catechism of the Catholic Church 2271). This is because even in rare cases where the mother’s life is in danger, the doctor should recognize that there is not just one but two patients under his care, the mother and the child, and he should work to save both from harm. Nevertheless, with respect to a law like that in North Dakota that allows for exceptions, the Church recognizes that those opposed to abortion can support imperfect laws that limit abortion as much as possible when it is not possible to outlaw abortion completely, if the person makes known his opposition to abortion (see Pope John Paul II, Evangelium Vitae 73).  

Still unsatisfied with the law, Red River and its abortionist physicians in August of 2023 amended their complaint against the state and sought to expand abortion rights in North Dakota beyond the three exceptions. The case proceeded until last September when the Bismarck trial court judge issued a shocking ruling. The judge ruled in favor of Red River and the pro-abortion doctors and declared North Dakota’s abortion law violates doctors’ rights and women’s rights under North Dakota’s Constitution. According to the court’s final judgment, the law is unconstitutionally “void for vagueness” in violation of an abortionist doctor’s right to have fair notice of when an abortion is allowed and further found that the law “infringes on a woman’s fundamental right to procreative autonomy.” The trial judge’s radical decision would effectively allow for abortion on demand in North Dakota. 

The state of North Dakota immediately appealed the trial court’s judgment to the North Dakota Supreme Court and asked for the trial court’s ruling to be stayed during the pendency of the appeal. Unfortunately, both the trial court and the North Dakota Supreme Court denied the request for a stay. This means that the judge’s radical decision expanding abortion rights in North Dakota is in effect unless and until it is overturned by the North Dakota Supreme Court at the conclusion of the appeal. It also means North Dakota’s law prohibiting most abortions is unenforceable for the time being. The North Dakota Catholic Conference has joined the state’s appeal and filed an amicus curiae (“friend of the court”) brief arguing specifically that there is no right to abortion for mental health reasons under North Dakota’s Constitution (one of Plaintiffs’ claims), and nothing in our state’s history or tradition indicates there ever has been. 

The Bismarck trial court’s ruling and the North Dakota Supreme Court’s refusal to halt its effect during the pendency of the appeal leaves North Dakota in a state of legal limbo and uncertainty until the case is finally resolved. Even so, Red River and the pro-abortion doctors face a high legal hurdle to ultimately prevail in the appeal. This is because the North Dakota Constitution requires a “super majority” of justices to hold that a law passed by the legislature is unconstitutional. What this means is that four out of the five justices on the North Dakota Supreme Court must rule in favor of the Bismarck trial judge in the appeal. If any fewer than four rule in favor of the judge, North Dakota’s abortion statute prohibiting most abortions aside from the three narrow exceptions would be upheld.  

This is a complicated and circuitous legal process, and we will likely not know the outcome of the appeal for several more months. Please offer up your prayers and sacrifices for the North Dakota Supreme Court to make a decision that protects the life of unborn children in North Dakota.