Published November 4, 2022

North Dakota high court to weigh judge's abortion ban ruling 

Written by
AP - The Dakotan
| The Dakotan

By DAVE KOLPACK Associated Press 

FARGO (AP) — North Dakota's Supreme Court will hear arguments later this month on the state's abortion ban after the attorney general appealed a judge's ruling that kept it from taking effect. 

The high court on Wednesday scheduled oral arguments for Nov. 29 on South Central District Judge Bruce Romanick's opinion that there's a "substantial probability" a constitutional challenge to the law will succeed. The legal wrestling continues even though the state's lone abortion clinic, located in Fargo, has moved across the border to neighboring Minnesota. 

Romanick's ruling keeps a preliminary injunction in place until the heart of the case is resolved. State Attorney General Drew Wrigley declined Thursday to say which part or parts of Romanick's findings he planned to highlight in front of justices. 

"We're working on our supplemental briefing materials, eager to address the substance of this matter before the Supreme Court," Wrigley said. 

Specifically, Romanick took issue with the fact that the ban allows cases of rape or incest to be raised as an affirmative defense to administering an abortion, but that doctors would first be charged with a felony and then have to plead their cases. That puts unreasonable burdens on doctors and pregnant women, the judge said. 

Romanick last month rejected a request from Wrigley to let the law take effect while the Red River Women's Clinic lawsuit went forward. Wrigley argued that the judge had not sufficiently considered the clinic's chances of prevailing in court. The state Supreme Court agreed and told Romanick to take another look. 

Romanick stood his ground, saying the question on whether the state constitution "conveys a fundamental right to abortion is an issue that is very much alive and active" and does not have a "clear and obvious answer." 

The judge's decision drew mixed reviews from legal experts. Jonathan Turley, a George Washington University law professor, said the ruling is "strikingly conclusory on critical points" and shows that Romanick is "heavily committed" toward striking down the law. 

"It rejects, for example, that the state could not even satisfy the lowest constitutional standard of a rational basis test for the statute," Turley said. "While the court says that it is going out of its way to supply additional analysis to support the injunction, this is pretty thin soup for the state Supreme Court." 

Laura Hermer, law professor at Mitchell Hamline, said Romanick took a "moderate and well-reasoned approach" on his opinion, especially when noting that women are likely to suffer harm because doctors could opt against performing abortions even when they believe it's necessary to save the mother's life. 

"We've already seen this sort of harm in jurisdictions subject to abortion bans," Hermer said. 

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