North Dakota governor signs near-total abortion ban into law

On Monday, North Dakota became one of the staunchest anti-abortion states in the nation after Gov. Doug Burgum signed legislation banning abortions after six weeks, with few exceptions, even in the case of rape or incest.

The new bill is a revision of a “trigger law” previously proposed in 2007, which made it a felony for anyone to perform an abortion and a 2013 law that made it illegal to have an abortion after six weeks.

“This bill clarifies and refines existing state law which was triggered into effect by the [U.S. Supreme Court] Dobbs decision and reaffirms North Dakota as a pro-life state,” Burgum said in a statement, according to the Bismarck Tribune.

S.B. 2150, sponsored by Republican Sen. Janne Myrdal and passed 42-5 in the state Senate last week, makes it a Class C felony for a physician to perform an abortion. It offers exceptions for “a pregnancy that resulted from gross sexual imposition, sexual imposition, sexual abuse of a ward, or incest,” but only if the “probable postfertilization age” is six weeks or less, before most people even know that they’re pregnant.

In a statement released in January, before the Senate voted on the bill, Katie Christensen, the director of external affairs for Planned Parenthood North Central States, said:

States with strong access to abortion have lower maternal mortality rates, lower infant death rates, improved prenatal care access, and higher contraception uptake. Furthermore, states with similar abortion exceptions such as SB 2150 have scared medical professionals from providing care and placed pregnant people in dangerous situations. Access to abortion care is supported by an overwhelming majority of Americans including North Dakotans who soundly rejected a ballot measure that would have banned abortion in 2014.

North Dakota has no abortion clinics left. The last remaining clinic, Red River Women’s Clinic, moved in August 2022, from Fargo to Moorhead, Minnesota, a state where abortion remains legal.

Red River Women’s Clinic filed a lawsuit in July 2022 challenging North Dakota’s trigger ban, which was written to end all abortions 30 days after the Supreme Court issued an opinion overturning Roe v. Wade; it did so on June 24, 2022, with its ruling in Dobbs v. Jackson Women’s Health Organization. The clinic’s suit argues that a person’s right to an abortion is enshrined in the state Constitution:

The North Dakota Constitution guarantees all people the inalienable right of “enjoying and defending life and liberty” and “pursuing and obtaining safety and happiness.” … The due process language in article I, § 12 of the Constitution “protects and insures the use and enjoyment of the rights declared” by article I, § 1. …The Abortion Ban unconstitutionally deprives Plaintiffs’ patients of their right to life, safety, and happiness under Article I, §§ 1 and 12 of the Constitution of the State of North Dakota by prohibiting all abortions except in cases of rape, incest, or to protect the life of the pregnant woman.

In March, the North Dakota Supreme Court stayed the proposed abortion ban temporarily while the lawsuit is being litigated.

In his ruling, Chief Justice Jon J. Jensen wrote:

While the regulation of abortion is within the authority of the legislature under the North Dakota Constitution, RRWC has demonstrated likely success on the merits that there is a fundamental right to an abortion in the limited instances of life-saving and health-preserving circumstances, and the statute is not narrowly tailored to satisfy strict scrutiny. We grant the requested review, deny the relief requested in the petition, and leave in place the order granting a preliminary injunction.

The state’s new abortion law is intended to go into effect immediately, but it is likely to face legal challenges as well.

In March, North Dakota Senate lawmakers passed H.B. 1265 requiring that middle and high school students in the state watch a video of the full development of a fetus through the months of gestation. The bill passed in the House on April 4 and now heads to the governor’s desk for his signature.

There are currently 13 states in the U.S. with total or near-total bans on abortions at all stages of pregnancy.

Published with permission of The American Independent Foundation.