North Dakota Supreme Court upholds block on state pro-life law

The North Dakota Supreme Court on Thursday ruled to keep intact a lower court’s block on a pro-life law while the legal challenge over the law continues. The court claimed the pro-life law is likely unconstitutional.

First approved by the state legislature in 2007, the trigger law, which was to take effect on the overturning of Roe v. Wade, would have protected most preborn children from abortion. It would make it a felony for a person to commit an abortion except if the pregnancy was the result of rape or incest or if the mother’s life was in danger. The law states, “The following are affirmative defenses [for committing an abortion] under this section: a. That the abortion was necessary in professional judgment and was intended to prevent the death of the pregnant female b. That the abortion was to terminate a pregnancy that resulted from gross sexual imposition, sexual imposition, sexual abuse of a ward, or incest…”

Following the fall of Roe on June 24, 2022, the law was set to take effect in late August.

Red River Women’s Clinic, the abortion business behind the lawsuit to prevent the pro-life law from taking effect, argued that the trigger law violates the North Dakota constitution. Following the filing of the lawsuit, a North Dakota district court granted the abortion facility’s request to block it.

North Dakota’s attorney general then asked the state supreme court to intervene and reinstate the trigger ban. It has now refused to do so.

“The North Dakota Constitution explicitly provides all citizens of North Dakota the right of enjoying and defending life and pursuing and obtaining safety,” Chief Justice Jon Jensen wrote in the majority opinion. “These rights implicitly include the right to obtain an abortion to preserve the woman’s life or health.”

And yet, the bill already allowed abortion to preserve the woman’s life.

The court determined that the state constitution allows for induced abortion — the direct and intentional killing of a living preborn human — in order to allow citizens to ‘defend life.’ It said, “[It] is clear the citizens of North Dakota have a right to enjoy and defend life and a right to pursue and obtain safety, which necessarily includes a pregnant woman has a fundamental right to obtain an abortion to preserve her life or her health.” (emphasis added)

This decision to keep in place the lower court’s blockage of the law as the court case plays out signals that the North Dakota Supreme Court would not rule in favor of the pro-life law because it believes there is a ‘right’ to abortion in the state constitution under the auspices of defending life and pursuing safety, apparently beyond preventing the death of the mother, which the trigger law specifically allowed as one of multiple exceptions.

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Without the law protecting preborn humans from abortion in effect, abortion is legal for any reason through 21 weeks and six days in North Dakota. After that point, abortion is legal in order to save the mother’s life or physical health, though induced abortion — the direct and intentional killing of a preborn child — is not medically necessary.

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