It’s been a tough day for pro-abortion activists. First their ad claiming ballot Measure 1 “bans all abortion” was pulled from at least one television station because it isn’t factual, now the state Supreme Court has dealt the pro-lifers a legal victory as well.
During the 2011 legislative session Rep. Bette Grande, a Republican from Fargo, sponsored HB1297 which seeks to regulate the use of certain drugs for abortion.
The state’s only abortion clinic, the Red River Women’s Clinic in Fargo, challenged the law and district court Judge Wickham Corwin not only struck the law down as an unconstitutional restraint on the right to an abortion he also read into the state constitution the right to an abortion.
That last was the genesis for Measure 1 on the November ballot, which would put specific verbiage protecting life into the state constitution.
The State of North Dakota appealed the case to the state Supreme Court which ruled on it today. It was a big victory for the pro-lifers. The justices overturned Corwin’s ruling on the constitutionality of the law, meaning that the state can move forward with enforcement.
You can read the full ruling here. It was a 2-2-1 ruling (one of the justices thought the case shouldn’t even be before the state courts). A four-justice majority is required to declare a law unconstitutional.
The justices were split, however, on whether there is a right to an abortion in the state constitution. As Justice Dale Sandstrom points out in the opinion, the Red River Women’s Clinic specifically did not challenge the law under the federal constitution, hoping to create through judicial fiat the right to an abortion in the state 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.
In the end, Grande’s legislation is upheld (despite the assurances from pro-abortion activists that it would be overturned), and Corwin’s finding of a right to an abortion in the state constitution was also overturned.
To put it another way, because this is kind of confusing, the justices overturned a lower court ruling finding that there is a right to an abortion in the state constitution but they stopped short of saying there isn’t such a right.
No doubt, pro-lifers are hoping North Dakota voters settle that question by voting “yes” on Measure 1.