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North Dakota Supreme Court takes up trigger law banning abortion

The state argued the Red River Women's Clinic — which has since moved across the border to Minnesota — has no chance of winning its case against the abortion ban.

BISMARCK, N.D. (CN) — The North Dakota attorney general’s office defended the state’s trigger law banning abortion before the state Supreme Court Tuesday in the face of an injunction. 

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 did so this past June, the law took effect — until South Central Judicial District Judge Bruce A. Romanick of the South Central Judicial District in Burleigh County issued an injunction, finding it was important to maintain the the status quo in the state while a challenge of the law was pending. 

Matthew Sagsveen with state Attorney General's office told the justices Tuesday the injunction should fall because the Red River Women’s Clinic did not have a substantial probability of success in its challenge of the trigger law.   

The Red River Women’s clinic was the only abortion clinic in North Dakota, but the medical provider recently shut its doors in Fargo and moved across the Red River to neighboring Moorhead, Minnesota, to continue providing abortion services to the region. 

“The district court misconstrued the law applicable to preliminary injunctions and applied the wrong test to determine [if] Red River had a substantial probability of success on the merits,” Sagsveen argued. “Red River’s due process challenge is the central question of this litigation.”

Sagsveen said Judge Romanick neglected to address the full process by omitting the merits factors in the initial injunction. 

North Dakota has no previous ruling on this matter in its highest courts, Romanick found. In a previous ruling he noted that the clinic faces an “uphill battle” but determined it had a substantial chance of succeeding on the merits. Romanick also found there is a “substantial probability” that the law is unconstitutional “because of the constraint it places on doctors.”

Representing the clinic, attorney Meetra Mehdizadeh agreed the burden placed on doctors is exceedingly high in addition to offering arguments that life of the mothers is another major factor in the injunction.

“The state is asking the court for extraordinary relief before the district court has even had the opportunity to fully consider the devastating harms that this ban will cause.” Mehdizadeh told the justices. “Granting a supervisory writ here in vacating the injunction will be at odds with this court’s practice of granting such writs rarely, cautiously and only when immediate intervention is necessary.” 

Mehdizadeh argued the abortion law is one of the most extreme in the nation, as previous antiabortion legislation in the state allowed for more exceptions. 

“This law has no such exceptions.” Mehdizadeh said. “ It makes it a felony punishable by up to five years in prison to provide an abortion, without any exception.”

When asked about abortions in the case of ectopic pregnancy, where an embryo grows outside of a woman’s uterus, Mehdizadeh argued that is not a viable pregnancy and was in fact a danger to the mother.

Justice Lisa K. McEvers of the North Dakota Supreme Court posed a question concerning the potential medical malpractice liability for doctors who refuse to perform a life-saving abortion. Mehdizadeh could not answer that question, but presented hypothetical to the justices involving an individual at 18 weeks of pregnancy whose water breaks, making the pregnancy not viable. Justice Crothers asked if the clinic had treated a patient in that situation, but Mehdizadeh did not know of such a case.

The justices did not indicate how or when they would rule.

Sagsveen and Attorney General Drew Wrigley did not respond to requests for comment by press time.  

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