North Dakota Supreme Court Concludes State Constitution Protects the Right to Abortions to Preserve Life or Health

In Wrigley v. Romanick,[1] the North Dakota Supreme Court addressed a trigger law that criminalized abortion with limited exceptions following the Supreme Court’s reversal of Roe v. Wade in Dobbs v. Jackson Women’s Health Organization. The court declined to vacate a preliminary injunction of that law and, in doing so, held that the state constitution provides a fundamental right to an abortion when necessary to preserve life or health.[2] Two concurring opinions further analyzed the potential scope of this right.[3] These opinions could influence future North Dakota legislation regarding abortion.

Following Dobbs, plaintiffs challenged North Dakota’s trigger law, N.D.C.C. § 12.1-31-12, arguing both that “there is a fundamental right to receive abortion care under the North Dakota Constitution” and that § 12.1-31-12 violates that right.[4] Section 12.1-31-12 makes it a felony for any person, “other than the pregnant female upon whom the abortion is performed, to perform an abortion.”[5] It defines abortion as “intentionally terminat[ing] the pregnancy of an individual known to be pregnant,” and excludes acts intended “to increase the probability of a live birth,” to “preserve the life or health of a child after live birth,” or to “remove a dead, unborn child” following “a spontaneous miscarriage, an accidental trauma, or a criminal assault” from the definition.[6] Section 12.1-31-12 also provides affirmative defenses to the crime, including when an abortion is “intended to prevent the death of the pregnant female.”[7]

Plaintiffs sought, and received, a preliminary injunction from the district court.[8] The state asked the North Dakota Supreme Court to grant review and vacate the injunction.[9]

As a preliminary matter, the court agreed to exercise its supervisory jurisdiction to review the order, relying on the important public interests implicated and its exercise of jurisdiction in prior cases involving preliminary injunctions.[10] It then considered whether the preliminary injunction was an abuse of discretion based on four factors: “(1) substantial probability of succeeding on the merits; (2) irreparable injury; (3) harm to other interested parties; and (4) effect on the public interest.”[11]

First, the court examined whether plaintiffs had a substantial likelihood of success on the merits.[12] The court reasoned it had to determine “whether there is a fundamental right to an abortion under the State Constitution” so it would know whether strict scrutiny or rational basis review applied.[13] Thus, after briefly acknowledging the court failed to reach a consensus regarding whether there was a state constitutional right to an abortion in a 2014 decision, the court set out to squarely decide the issue.[14]

Looking to article 1, § 1, the court explained the “North Dakota Constitution explicitly provides all citizens of North Dakota the right of enjoying and defending life and pursuing and obtaining safety.”[15] It then reasoned that “[t]hese rights implicitly include the right to obtain an abortion to preserve the woman’s life or health” based on the state’s “long history of permitting women to obtain abortions” in those circumstances.[16] The court cited territorial and state laws that excepted life-preserving abortions from criminal prohibitions on abortions.[17] It further noted that, until the passage of § 12.1-31-12 in 2007, North Dakota had consistently “enacted and reaffirmed laws which always provided an exception to preserve the life of the woman.”[18] The court also cited medical journals published shortly after North Dakota became a state suggesting abortions may be necessary for a woman’s health to support its conclusion that health-preserving abortions were also permissible.[19]

After concluding there is a fundamental right to life- and health-preserving abortions, the court analyzed whether § 12.1-31-12 could satisfy strict scrutiny.[20] It concluded that it could not and that plaintiffs had “a substantial likelihood of succeeding on the merits at least with respect to life or health preserving abortions.”[21] The court recognized the state’s “compelling interest in protecting women’s health and protecting unborn human life,” but determined the statute was not “narrowly tailored” to that interest because it “criminalizes abortions performed even if the abortion is to preserve the life or health of the woman.”[22] The court found that the availability of the affirmative defense that an abortion is intended to preserve the woman’s life did not make the statute narrowly tailored because the burden of proving an affirmative defense is on the prosecuted person.[23] It also noted that the statute did not have any exceptions or affirmative defenses where an abortion was necessary to preserve a woman’s health, as opposed to her life.[24]

Second, the court considered the claimed irreparable injuries.[25] It reasoned if § 12.1-31-12 were enforced, there would likely be irreparable damage caused by “potentially life-saving or injury avoiding abortions that will not be performed.”[26] On the other hand, it acknowledged the state would suffer the irreparable injury of “irreversible loss of unborn human life” if the statute remained enjoined.[27] Although the court “may have found” the irreparable-injury factor to be neutral if it was the court of first view, it concluded it was not an abuse of discretion for the district court to find this factor favored plaintiffs.[28]

Third, the court assessed the harm to other interested parties.[29] It considered the interests of women who would “face grave harm” if the statute was not enjoined against North Dakota’s citizens’ “interest in legislation being enforced.”[30] The court explained the district court did not abuse its discretion in finding this factor favored plaintiffs, noting the statute had been “dormant for almost 15 years” before Dobbs and “the State failed to show how an additional delay would greatly harm any other interested parties.”[31]

Fourth, the court considered the injunction’s effect on the public interest.[32] It balanced the public’s interest in protecting “constitutional rights” and the fact abortions had been “legal in North Dakota for 50 years” post-Roe against North Dakota’s “long standing history of prohibiting abortions” prior to Roe.[33] The court ultimately concluded it was reasonable for the district court to find the status quo and public interest favored granting a preliminary injunction.[34] The court therefore left “the preliminary injunction in place.”[35]

Although the court held the state constitution “necessarily includes . . . a fundamental right to obtain an abortion to preserve [a pregnant woman’s] life or health,” it did not elaborate on what qualified as a health-preserving abortion or whether there is a right to abortions in other circumstances.[36] The concurring opinions, however, touched on these issues.[37] Justice Jerod Tufte opined that the right to a life- or health-preserving abortion “need not be understood more broadly than” the right to self-defense that allows an individual “to respond[] to a threat of imminent serious bodily injury or death with physical force.”[38] Accordingly, he explained that “[w]here a pregnancy raises a similar threat of serious bodily injury or death, the pregnant woman has a fundamental right” to a life- or health-preserving abortion.[39] He also indicated that historical evidence regarding “what scope of health risks may give rise to abortion as medical self-defense” may be helpful to the district court’s merits decision.[40]  

In contrast, Justice Lisa McEvers implied she may be receptive to recognizing broader abortion rights.[41] Relying heavily on Thomas Cooley’s treatise and comments during North Dakota’s constitutional convention, she emphasized the state’s constitutional provisions “protecting life, liberty, and security of a person” are “broad guarantees of freedom” that set limits on the state’s legislative power.[42]

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