Skip to Main Content

March 17, 2023
Health Law Weekly

North Dakota Supreme Court Leaves Preliminary Injunction Blocking Abortion Ban in Place

  • March 17, 2023

The North Dakota Supreme Court refused March 16 to vacate a preliminary injunction blocking enforcement of the state's abortion ban while the lawsuit challenging the constitutionality of the so-called “trigger law” proceeds.

Access Independent Health Services, Inc. d/b/a Red River Women’s Clinic (RRWC) challenged the North Carolina law, which was similar to a number of other state abortion restrictions that were designed to go into effect when the Supreme Court overturned Roe v. Wade.

“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,” the high court said.

The North Dakota law, which was enacted in 2007, criminalizes abortion though it includes affirmative defenses for preserving the life of the pregnant person and in cases of rape or incest. The district court agreed to temporarily enjoin enforcement of the statute before it took effect. 

“Because we hold the North Dakota Constitution provides a fundamental right to receive an abortion to preserve a pregnant woman’s life or health, the constitutionality of [the law] must be analyzed under the strict scrutiny standard,” the high court said.

While acknowledging the state’s compelling interest in protecting women’s health and protecting unborn human life, the high court noted the North Dakota law is not narrowly tailored because it criminalizes abortions even if they are performed to preserve the life or health of the woman.

“The statute requires a physician who performs a life-preserving abortion to face prosecution of a class C felony, and if prosecuted prove by a preponderance of the evidence the abortion was necessary to save the life of the woman. This is not narrowly tailored to achieve the State’s interests in women’s health and protecting unborn human life,” the high court said.

The statute also “provides an affirmative defense only if in the professional judgment of the physician the abortion was necessary to prevent the death of the female. A pregnant woman is unable to obtain an abortion in order to preserve her health,” the high court added. For example, the high court noted that an abortion to treat an ectopic pregnancy would be a criminal act. 

“Today, the court rightfully stopped one of the most extreme laws in the country from taking effect and depriving North Dakotans of their reproductive freedom,” said Nancy Northup, president and CEO of the Center for Reproductive Rights, which filed the lawsuit on RRWC's behalf. 

North Dakota Attorney General Drew Wrigley, however, said it appeared the high court was "taken[ing] on the role of a legislative body" in finding an "undefined 'health' exception to abortion regulation."

"Today’s North Dakota Supreme Court decision does not bar the people of North Dakota from regulating abortion through the enactments by their elected representatives in our state legislature. Thankfully, our legislature has spent the past two months working on legislation that recrafts North Dakota’s abortion laws," Wrigley said. 

Wrigley v. Access Indep. Health Servs., Inc., No. 2023 ND 50 (N.D. Mar. 16, 2023).