GameND repeats the recent narrative that the North Dakota legislature has wasted taxpayer money by defending clearly unconstitutional and “worthless” laws. The narrative, however, is wrong. Much of the litigation has been expended defending laws concerning women’s health and involving unsettled legal issues that could have broad and unprecedented consequences of North Dakotans.
Let’s start with NDGame’s claim that Sanford’s decision to allow admitting privileges to the abortion providers “nullified” HB 2304. Since when does complying with a law nullify the law? The abortionists decided to comply with the law and the purpose of the law was fulfilled. It’s a victory, not a defeat for the legislature.
Certainly some will claim that the purpose of the law was to shut down the clinic, but commenters should refrain from making such cynical allegations unless they can provide proof, such as in the form of legislative testimony, to support such claims.
Concerning whether the state has wasted taxpayer money defending the laws, it should be noted that just $154,749 has been expended defending the fetal heartbeat law. The rest has been spent in a lawsuit involving serious state constitutional questions arising from the regulation of abortion drugs passed in 2011. That legislation merely required that the use of abortion drugs be conducted according to the protocol submitted to the FDA. It did not ban medical abortion and, as is very clear from the legislative history, was not intended to do so.
The abortion clinic challenged those regulations on the theory that the North Dakota Constitution provides a right to abortion that is greater than the right recognized by the U.S. Supreme Court. If the clinic were to prevail, all of the state’s common sense laws on abortion, such as physician-only requirements and parental notification, would be in jeopardy. This is the underlying issue of the case and the reason why the state must defend vigorously defend the law. Most North Dakotans, if they understood what was at stake, would probably support the use of taxpayer funds to defend the law and state constitution.
The abortion drug case is far from being settled law. Courts have issued differing decisions on similar statutes. In any event, the case presents the unprecedented question of whether the state constitution provides a right to abortion. Although it is difficult to predict how the North Dakota Supreme Court will rule on the case, even a cursory look at the briefs filed and the oral arguments will reveal that this is hardly a settled issue.
In short, even if GameND is right by asserting that defending the heartbeat bill was a waste of time and money – an assertion about which reasonable people can disagree – he is wrong to claim that all of the defense of the abortion laws was a waste of money. Three of the four laws passed in 2013 have gone into effect. The 2011 law concerns women’s health and unresolved state constitutional questions. (Challenges to the sex selection ban and the admitting privileges laws were briefly attached to other lawsuits, but they were withdrawn shortly thereafter.)
GameND is right to suggest that we should do more to address the root causes of abortion, but that is no excuse for turning our backs on the health and safety of women who have abortions or refusing to defend laws that protect women’s health, the role of parents, and taxpayer’s conscience.