Why two votes beats three on North Dakota Supreme Court; curb on medication abortions is upheld
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The North Dakota Supreme Court upheld a law curbing medication abortions in the state on Tuesday, though three of the five justices said the law violates the U.S. Constitution.
Because of a state constitutional requirement, the votes of at least four supreme court justices are needed to strike down a state law, report the Forum of Fargo-Moorhead and the Associated Press. “The effect of the separate opinions in this case is that [the law] is not declared unconstitutional by a sufficient majority,” the opinion said.
Lawyer David Brown of the New York-based Center for Reproductive Rights represented the abortion clinic that challenged the law. “The vote of two justices in this particular case beats the vote of three, which is unique to North Dakota as far as I know,” he told the Forum.
An opinion by Justice Carol Ronning Kapsner, who believed the law violated both the state and federal constitutions, said the supermajority requirement should not apply when a majority finds a law unconstitutional under the U.S. Constitution. “Where federal constitutional law speaks, it controls,” she wrote. “A state may grant greater rights, but not lesser.” Her opinion was joined by Justice Mary Muehlen Maring.
A third justice, Daniel Crothers, concurred on the merits of the federal constitutional question, but said he believed the supermajority requirement meant that the abortion law could not be struck down.
The Red River Women’s Clinic in Fargo, North Dakota’s only abortion clinic, had argued the law had the effect of banning medication abortions because it requires doctors prescribing abortion pills to follow a Food and Drug Administration protocol that is outdated.
Hat tip to How Appealing.
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