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North Dakota Supreme Court keeps block on abortion ban

The state claims that a former abortion clinic has no chance to win against an abortion ban. The North Dakota Supreme Court disagrees.

BISMARCK, N.D. (CN) — The North Dakota Supreme Court on Thursday kept in place a lower court's block of a controversial trigger law that would ban abortion in the state.

North Dakota’s trigger law was scheduled to take effect in the event that Roe v. Wade was overturned. After the U.S. Supreme Court made that a reality in June 2022, the law took effect — until South Central Judicial District Judge Bruce A. Romanick in Burleigh County issued an injunction

Judge Romanick found it was important to maintain the status quo in the state while a challenge of the law was pending.

The state Attorney General's office made the argument in a North Dakota Supreme Court hearing this past November that the clinic bringing the case did not have a substantial probability of success in its challenge of the trigger law.

Ruling on the injunction Thursday, the North Dakota Supreme Court disagreed.

"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," Chief Justice Jon J. Jensen wrote in the opinion. 

Before the trigger law took effect, the Red River Women’s Clinic (RRWC) operated as North Dakota’s sole abortion clinic which provided the service in addition to other resources. In the midst of uncertainty, the clinic closed its doors and migrated east across the Red River into Minnesota where it established itself as an abortion provider in a state with a more solidified access to abortion.

Although the clinic may no longer exist in North Dakota, Red River Women’s Clinic has continued to challenge the trigger law. Clinic director Tammi Kroenaker expressed both relief with the high court’s opinion and sorrow with the ongoing battle in the state.   

"The court made the right decision and sided with the people of North Dakota today," said Kromenaker in a public statement. "Those seeking abortion care know what's best for themselves and their families and should be able to access such essential services if and when they need it. While I'm heartbroken that we have been forced to close our doors here in Fargo, we will continue to serve the region at our new clinic in Moorhead, Minnesota."

The ban may be on ice for now, but should it ever become enforceable in the state, it would necessarily include a number of exceptions for the life of the mother, incest and rape to pass muster with the courts. And in a lengthy swipe at the high court's ruling, the state Attorney General's Office said the Legislature is working on it.

"The North Dakota Supreme Court today chooses a path of its very own, by holding there is now also an undefined 'health' exception to abortion regulation. Our Supreme Court did this without explicit support from our state Constitution, and without support from legislative enactments in our history of abortion regulation," the office said in a statement. "In so doing, North Dakota’s Supreme Court appears to have taken on the role of a legislative body, a role our constitution does not afford them.

"Thankfully, our Legislature has spent the past two months working on legislation that recrafts North Dakota’s abortion laws, and they will now have the opportunity to enact the will of North Dakotans, aware of the latest North Dakota Supreme Court pronouncement.”

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