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State Supreme Court leaves injunction in place on ND Abortion Trigger law (Updates with Planned Parenthood statement)

The North Dakota Supreme Court has decided not to remove a preliminary injunction against the state’s abortion law.

The state’s laws on restricting abortion services had a “trigger” mechanism, so they would take effect when “Roe V. Wade” was overturned. But the state’s lone abortion clinic filed a lawsuit saying the state’s Constitution provides a “fundamental right” to an abortion. The clinic asked a district court for a preliminary injunction – and that was granted.

State Attorney general Drew Wrigley asked the state supreme court to vacate that injunction, but that court ruled the clinic demonstrated likely success that there is a fundamental right to abortion in limited incidences of life-saving and health-preserving circumstances. That means the injunction will stay in place, until a decision is made in the clinic’s lawsuit.

Wrigley issued this statement after the decision.

“N.D.C.C. 12.1-31-12, commonly known as the “trigger law,” was bi-partisan legislation passed by the 2007 Legislature and signed into law. The law was only allowed to take effect after the United States Supreme Court handed down the Dobbs decision, which explicitly returned to the citizens of each state the authority to regulate abortion through the enactments of their elected representatives.

Since pre-statehood, the Dakota Territory and then North Dakota, have always recognized abortions may be utilized to protect the life of the mother. Our Territorial and state laws are clear on this topic and are explicitly confined to protecting the life of the mother.

Legislatures could have expanded that narrow exception, but they have not done so.

Nevertheless, the North Dakota Supreme Court today chooses a path of its very own, by holding there is now also an un-defined “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. 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.

The Court today relies on two 1914 British medical journal articles to point out that it has long been known that abortion can be utilized for health reasons, in addition to protecting the life of the mother. But such an exception has never been recognized or codified in any of the North Dakota statutes regulating abortion before these 1914 articles or thereafter.

Today’s North Dakota Supreme Court decision does not bar the people of North Dakota from regulating abortion through the enactments by their elected representatives in our state legislature. 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.”

Statement from Katie Christensen, North Dakota State Director, External Affairs for Planned Parenthood Minnesota, North Dakota, South Dakota Action Fund:

“The court's decision today is an enormous victory for doctors, pregnant people, and all North Dakotans. People need and deserve access to abortion care, and today the court said that remains possible. The decision about whether, when, or how to become a parent is one of the most important life decisions we make. A person should have the right to make decisions about their reproductive health care and future, not politicians.”

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