Published June 25, 2022

Facts of Law: North Dakota After Roe - A Complicated Mess

Written by
Andrew Schultz
| The Dakotan
Andrew Schultz
Andrew Schultz

On Friday, the United States Supreme Court issued its long-awaited decision in Dobbs v. Jackson Women’s Health Organization, overturning Roe v. Wade. The crux of the decision found no right to abortion contained within the various rights of the U.S. Constitution, effectively returning abortion regulation to the control of the states.

Abortion is undoubtedly a touchy subject for a lot of people, and there are an incalculable number of reasons that a person may be pro-life or pro-choice. The North Dakota legislature has taken at least five different stances on how to regulate abortions in our state, in varying degrees with different exceptions.

The legislature passed a “viability law,” where no abortion may be performed after fetal viability without a husband’s consent for a married woman, unless the husband is voluntarily separated from her; or without a parent’s written consent for an unmarried minor. There are two exceptions: when an abortion is necessary to preserve the woman’s life or if the continuation of the pregnancy will “impose a substantial risk of grave impairment of her physical or mental health.” Under this law, a married woman could obtain an elective abortion with her husband’s consent. However, theoretically, a woman may be denied an abortion because 1) a husband is involuntarily separated from her (for example, because of marital rape or other abuse); 2) she is an unmarried adult, or 3) she’s in a same-sex marriage.

The legislature appears to have resolved these scenarios by eliminating them entirely in a separate “post viability law” outlawing all abortions after viability, period, but for the two original exceptions of the original viability law.

In the state’s “twenty weeks” law, all abortions are prohibited after twenty weeks’ gestation, with a sole exception for a “medical emergency.” A “medical emergency” is legally defined as a condition where an abortion is necessary to preserve the woman’s life, or a continued pregnancy would create “a serious risk of substantial and irreversible impairment of any major bodily function.”

“Viability” and “twenty weeks” are not synonymous, and these two laws have different exceptions. Finally, North Dakota’s “fetal heartbeat” law is more restrictive, outlawing all abortions after the detection of a fetal heartbeat. There are exceptions for the same medical emergency language as the “twenty weeks” law. None have exceptions for rape or incest; in fact, abortion is expressly forbidden if sought as a result of diagnosed or potential genetic abnormalities, a known consequence of incest.

Finally, North Dakota has a trigger law, purporting to take effect thirty days after the attorney general certifies to the legislative council that the Supreme Court restores state authority to prohibit abortion. This particular law prohibits all abortion, regardless of viability or gestational age, unless necessary to save the woman’s life, or in cases of rape or incest. None of the other four laws have exceptions for rape or incest.

None of these laws purport to supersede or repeal any of the others. We could have different abortion frameworks. And there are further complications, especially with notice and location laws. An abortion facility may perform an abortion before twelve weeks’ gestation, and some notice laws are based on pre- and post-viability. The fetal heartbeat law makes these provisions potentially obsolete, as does the trigger law. Most of the scenarios involve situations so dire that only a hospital is the appropriate venue.

Finally, even though Roe has been overturned, significant federal constitutional questions remain: Does a state violate a woman’s right to constitutional due process if abortion is outlawed prior to the time when she is reasonably expected to know she is even pregnant? Does she even have that right? At what point does a state’s interest in an unborn child overcome a woman’s right to bodily autonomy, given advances in medical technology? Is each state allowed to decide when life begins? What constitutional test needs to be used to evaluate these concerns, and who has the burden of proof?

Even though Roe’s fate has been decided, we are a long way away from settled legal ground for these kinds of issues, at both state and federal levels. For our part, it looks like our state legislature has a lot of work to do.

In addition to being a contributing writer, Andrew Schultz is The Dakotan’s legal counsel. He owns and operates Worthington & Schultz, P.C., a law firm in Minot. Visit www.worthingtonschultz.com.

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