A state judge vacated North Dakota’s near-total ban on abortion Thursday, saying that the state constitution creates a fundamental right to access abortion before a fetus is viable.
North Dakota has a near-total abortion ban on the books, with very few exceptions, because of a state law that went into effect in April 2023. In his ruling, state District Judge Bruce Romanick also said that the law violates the state constitution because it is too vague.
Romanick was ruling on a request from the state to dismiss a 2022 lawsuit filed against the ban by what at the time was the sole abortion clinic in North Dakota. The clinic has sinced moved across the border to Minnesota, and the state argued that a trial wouldn’t make a difference. The judge had canceled a trial set for August.
Pregnant women in North Dakota have a fundamental right to choose abortion before viability exists under the enumerated and unenumerated interests provided by the North Dakota Constitution,” the judge wrote.
Romanick cited how North Dakota Constitution’s guarantees “inalienable rights,” including “life and liberty.”
The abortions statutes at issue in this case infringes on a woman’s fundamental right to procreative autonomy, and are not narrowly tailored to promote womens’ 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.”
Romanick was first elected a district judge in heavily-GOP North Dakota in 2000 and has been reelected every six years since, most recently in 2018. Before he was a judge, he was an assistant state’s attorney in Burleigh County, home to the state capital of Bismarck.
The judge acknowledged in his ruling that in the past, the North Dakota courts had previously relied on federal court precedents on abortion, but said those state precedents had been “upended” by the U.S. Supreme Court’s 2022 decision to overturn Roe v. Wade and allow states to ban abortion under the U.S. Constitution.
Romanick said he’d been left with “relatively no idea” how the North Dakota Supreme Court would address the issue, and so his ruling was his “best effort” to “apply the law as written to the issue presented” while protecting the fundamental rights of the state’s residents.
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.
Romanick concluded that the law is too vague because it does not set clear enough standards for determining whether exceptions apply, leaving doctors open to being prosecuted because others disagree with their judgments. North Dakota law prohibits abortion in all cases except rape or incest — if the woman has been pregnant less than six weeks — and if needed to prevent the death or serious health risk to the woman.
The Red River Women’s Clinic, which was North Dakota’s sole abortion provider, filed the original lawsuit in 2022 against the state’s now-repealed trigger ban, weeks after the fall of Roe v. Wade. The clinic afterward moved from Fargo to neighboring Moorhead, Minnesota.
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.
Soon after that, the clinic, joined by several doctors in obstetrics, gynecology and maternal-fetal medicine, filed an amended complaint. The plaintiffs alleged the abortion ban violates the state constitution because it its unconstitutionally vague about its exceptions for doctors, and that its health exception is too narrow.
