North Dakota Constitution protects abortions needed to protect women's life and health, top state court says

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North Dakota and US flags flying in front of the state capital building where the state supreme court meets

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The North Dakota Constitution protects the right to obtain an abortion when it is needed to preserve the life or health of a pregnant woman, the state supreme court said Thursday.

The North Dakota Supreme Court ruled in a challenge to a 2007 state trigger law that banned abortions if the U.S. Supreme Court overturned Roe v. Wade—which occurred on June 24, 2022. The law provides an affirmative defense for those who perform abortions needed to prevent the death of a pregnant woman, but not for abortions needed to protect the woman’s health.

The March 16 decision leaves in place a preliminary injunction barring enforcement of the abortion ban during the litigation. The plaintiff challenging the North Dakota law is the Red River Women’s Clinic.

The supreme court cited Article 1, Section 1 of the state constitution, which provides that all individuals have certain inalienable rights, including “enjoying and defending life and liberty” and “pursuing and obtaining safety and happiness.”

“These rights implicitly include the right to obtain an abortion to preserve the woman’s life or health,” the North Dakota Supreme Court said. The court also said North Dakota’s “history and traditions” supported an exception for life and health.

The case is Wrigley v. Romanick. The clinic and its medical director are represented by the Center for Reproductive Rights; Weil, Gotshal & Manges; and Sambor Goetz, according to a press release.

Two other top state courts have ruled on state constitutional provisions in abortion cases, according to the New York Times. South Carolina found protection while Idaho did not. A third state, Montana, upheld an injunction temporarily blocking a 20-week abortion ban.

Hat tip to the Legal Profession Blog, the Volokh Conspiracy and How Appealing, which noted the decision.

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