". . . and having done all . . . stand firm." Eph. 6:13


Red State’s Supreme Court Halts Pro-Life Law Citing ‘Undefined’ Abortion Right

March 18, 2023

A conservative state’s supreme court has “taken on the role of a legislative body” by halting the state’s pro-life protection law for violating a constitutional “right” that does not exist, the state’s attorney general has said.

The North Dakota Supreme Court on Thursday stopped enforcement of the state’s trigger law, which protected nearly every unborn baby from abortion, because it does not contain an exception for the “health” of the mother — an exception that historically has been used to justify virtually any late-term abortion.

“North Dakota’s Supreme Court appears to have taken on the role of a legislative body, a role our constitution does not afford” it, “by holding there is now also an un-defined ‘health’ exception to abortion regulation … without explicit support from our state constitution,” said state Attorney General Drew Wrigley (R). North Dakota officials have historically assured that abortion remained “explicitly confined to protecting the life of the mother. Legislatures could have expanded that narrow exception, but they have not done so.”

Justices claimed North Dakota chose to “criminalize life-preserving abortions” by democratically adopting the state law in 2007. Yet the law explicitly shields doctors from being charged with a felony if “the abortion was necessary in professional judgment and was intended to prevent the death of the pregnant female.”

The plaintiff — Red River Women’s Clinic, formerly North Dakota’s only abortion facility — “demonstrated likely success” in proving “there is a fundamental right to an abortion” in “health-preserving circumstances,” the judges wrote. “[W]e hold the North Dakota Constitution provides a fundamental right to receive an abortion to preserve a pregnant woman’s life or health.”

In their Wrigley v. Romanick opinion, justices admitted that North Dakota lawmakers had “always” enacted laws “with the same exception for abortions ‘necessary to preserve her life,’” even before receiving U.S. statehood. Yet they also asserted that “North Dakota has a longstanding history of allowing pregnant women to receive an abortion to preserve her life or health,” citing the fact that “[m]edical journals published shortly after statehood indicate it was common knowledge that an abortion could be performed to preserve the life or health of the woman.” Furthermore, abortion has “longstanding roots in American culture,” justices wrote. They similarly allege that, under the law, “an abortion to treat an ectopic pregnancy would be a criminal act.”

The state constitution contains no explicit right to abortion. Instead, it declares all people have “certain inalienable rights, among which are those of enjoying and defending life and liberty,” as well as “obtaining safety and happiness.” But the state supreme court stated that the right to “obtain safety … implicitly include[s] the right to obtain an abortion to preserve the woman’s life or health.” They also said the right to preserve the mother’s life includes, not only life-threatening conditions, but “life altering [sic] damage.”

“This is a trash decision,” said a North Dakota-based Twitter user. “The right to life is part of the constitution so that should be protecting the unborn from abortion.”

Even those who support abortion-on-demand say the justices’ opinion does not hold up. “The purely historical argument doesn’t seem to me to extend to a right to abortions that are needed merely to preserve health rather than to protect life; the sources the majority cites don’t mention health,” said UCLA law professor Eugene Volokh, who describes himself as “not an opponent of abortion.” The “right to abortion to protect ‘health’ could be turned into a right to abortion on demand, so long as the woman claims that the abortion threatens her mental health and a doctor agrees.”

The health exception has already massively increased the number of abortions. The Supreme Court ruled in 1973’s Roe v. Wade opinion that abortion may take place “for the preservation of the life or health of the mother” (emphasis added). In its companion case, Doe v. Bolton, justices decided the health of the mother includes “all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the wellbeing of the patient.” The abortion industry immediately seized upon the “health” exception, as “liberally interpreted to certify any mental health claim” to justify third-trimester abortions, explained Connor Semelsberger, director of Federal Affairs for Life and Human Dignity at Family Research Council.

An official with Planned Parenthood’s action fund called the North Dakota opinion “an enormous victory.”

The case, argued by Meetra Mehdizadeh of the Center for Reproductive Rights, fulfilled CRR’s strategy to have abortion declared a “right” state by state. The group touted its success in saying state courts laying “a foundation of novel jurisprudence” supporting abortion.

Abortionists are “looking to the state court cases as the places where there can possibly be a win,” said David Cohen, a law professor at Drexel University.

Pro-life advocates such as Live Action founder Lila Rose said, “North Dakota lawmakers must work around this legal fiction and ensure their children are protected from abortion.”

The ruling highlights a potential vulnerability for abortion activists to work in concert with state judicial activists: Only four states’ constitutions explicitly state they do not contain a “right” to abortion, according to the Guttmacher Institute: Alabama, Louisiana, Tennessee, and West Virginia.

Strictly speaking, “abortion, by its culturally accepted definition, is never medically necessary to save a mother’s life,” noted Mary Szoch, the director of Family Research Council’s Center for Human Dignity, with Joy Stockbauer.

All sides agree with Alicia Bannon of the Brennan Center for Justice that the dispute will continue, in North Dakota and nationwide.

“I don’t think it’s a dynamic where a court will issue a ruling and that’s the end of the conversation,” she said.

Ben Johnson is senior reporter and editor at The Washington Stand.