North Dakota Abortion Proponents Lose Again


It seems as though every time a pro-life law is being debated the knee-jerk reaction from its opponents is the assertion that it will be struck down by the courts. We are told that these laws are a waste of taxpayer dollars.

Except, very often these laws are upheld by the courts. In this instance, HB1297 from the 2011 legislative session (sponsored by former lawmaker and SAB contributor Bette Grande) which regulated certain drugs used for abortions. The North Dakota Supreme Court overturned a lower court finding that this law was unconstitutional, and today denied a request from North Dakota’s only abortion clinic that the case be re-heard.

The North Dakota Supreme Court has declined to rehear arguments against their ruling that upheld a state law passed in 2011 that limits drug-induced abortions.

The state’s only abortion clinic petitioned the high court for a rehearing in November to clarify what it called ambiguities in the effects of House Bill 1297.

I’ve always felt that the “it’ll be struck down by the courts” argument against legislation was a bit like embracing a heckler’s veto. The representatives of the people cannot pass laws because they might inspire lawsuits from activists? That’s a poor way to govern.

But this state Supreme Court ruling on HB1297 was important for more than just the law itself. In the original ruling striking down the law the lower court read a right to an abortion into the state constitution. Usually these laws are challenged based on the court-created right to an abortion which supposedly exists in the federal constitution, but pro-abortion activists carefully constructed their challenge to the law to focus specifically on the state constitution.

Initially the state courts agreed, which was alarming to pro-life activists (and served as the genesis for Measure 1 on the November 2014 ballot last year), but in their original ruling on this case the Supreme Court rejected the argument and uhpeld the law since it was never challenged under the federal constitution.

The plaintiffs made a conscious decision to seek to establish a separate state constitutional right to an abortion under the North Dakota Constitution. Presumably, they did so as a backup in case a right to an abortion ever ceases to exist under the United States Constitution. Plaintiffs never argued that the bill was unconstitutional under the United States Constitution. They never pled a United States Constitutional violation. A United States Constitutional violation was never tried by consent. The district court, in its 55-page order, also said the statute violates the United States Constitution, but the issue was not pled or tried by consent and thus was not before the district court, and the district court did not say how the issue was before it.

Had the pro-abortion activists challenged this law under the federal constitution, the courts probably would have ruled differently. As it stands, the pro-abortion activists lose and the pro-lifers win. Both in that HB1297 is the law (the state’s only abortion clinic has now stopped performing drug-induced abortions) and that the lower court ruling finding a right to an abortion in the state constitution has been struck down.