Dorso Column: Consider Referral Before Litigation For Pro-Life Bills


You will be hearing all of the moral arguments on both sides of the abortion issue in the next few months. I tend to leave the arguments about the beginning of life up to the scholars of my chosen faith. Those of you who have read my book know I am pro life. That being said I would like to turn the debate toward a discussion I think needs to be had.

Before each side of the abortion issue starts hiring attorneys may I suggest an alternative? The North Dakota Constitution provides for the referral of any legislation passed by the legislature and signed by the governor. Both sides should encourage that avenue first, before millions are spent on legal fees. If a majority of citizens affirm the action of the legislature at the next general election that should be the end of it. Most of us know that a vote on the issue will not be the final solution. The next step may not involve the legality of abortion at all.

While passions become inflamed over the abortion issue itself I believe it is also time for the states to test the overreaching of our Federal government. The Roe v. Wade decision by the U.S. Supreme Court is the law but the question then remains as to how do states regulate the procedure.

I have long held the opinion that the courts, congress and the executive branch of our Federal Government are overreaching in their usurpation of the states right to govern themselves. I testified numerous times in front of both US House and Senate hearings protesting the invasion of state’s rights.

If it is the state’s right to have capital punishment in the case of certain heinous crimes I think it has the right to set limits on abortion within its jurisdiction. I am no legal scholar but the parallel seems appropriate in my mind. Thus it seems to me that Attorney General Stenjhem has to argue that if suit is brought concerning the three bills just signed by the governor, he has to argue that it is North Dakota’s right to set the limits on the procedure. I don’t think that in this case the courts or anyone bringing suit has the Commerce Clause to use in its arguments. In far too many instances the three branches of the federal government have used that ploy to whip the states into submission.

In the late 90’s under Secretary Donna Shalala of the Dept. of Health and Human Services we were notified that North Dakota’s law on abortion didn’t meet the federal test and they were contemplating pulling some of our federal funding. Governor Schafer was concerned and had Senate Mjr. Ldr. Nelson and I introduce a delayed bill modifying the language in the state law. The bill passed the senate but when it arrived in the house a battle commenced. Both sides of the abortion issue came unhinged. I didn’t think the bill did much but it would give the governor the grounds from which to fight the feds if it came to that. In the end the argument that won the day wasn’t about abortion but was “tell the feds to go to hell”. As far as I know the Feds never did test the existing state law.

We should all be quite perplexed by the federal intrusion into state law. What right does the US Supreme Court have to tell a state whose citizens, in a general election, have passed a defense of marriage act that it isn’t legal. Sure you can march out a civil rights argument but the states limit civil actions in thousands of ways. Are all of those laws subject to a federal judiciary? If that is the case then let us just admit that the US Constitution isn’t valid anymore.

If a court case is brought it should first be heard in the state courts, where the ND Attorney General will be required to defend the action of the legislature. It will be interesting to see how the AG and the courts react. I would bet most district judges would rather punt it right up to the ND Supreme Court. At that level it will be interesting to see how the court will rule. That probably won’t be the end of it. It will then go to the Federal Courts where I would hope the judges would say they have no jurisdiction over the matter. That is probably wishful thinking on my part.

Those of you who are pro-choice and law trained will probably try to go straight to the Federal courts. I suspect that the pro-choice faction will figure that is the friendliest venue for their arguments. I would suggest that the three step process (referral, state courts and federal courts) would be a more acceptable way to go forward.

The legislature should make sure the funding is there for a long battle. The bill carrying that funding should receive unanimous support. Your legislature should also be on record, protecting the state’s right to pass and enforce it own laws.
May you all have a blessed Easter as we remember why we celebrate this Sunday.