North Dakota Supreme Court reinstates law protecting preborn children from abortion

On Friday, the North Dakota Supreme Court ruled that the state's law protecting most preborn children from abortion is unconstitutional, upholding a lower court's decision. However, the 3-2 ruling was not the supermajority necessary to officially overturn the law; therefore, the pro-life law will take effect.

Key Takeaways:

• North Dakota Supreme Court justices ruled 3-2 that a state law protecting preborn children from abortion is unconstitutional, but it failed to get the four-vote supermajority necessary to overturn the law.

• Most preborn babies will now be protected from abortion in the state; however, North Dakota still allows some abortions that fall within exceptions to the law.

The Details:

Justices in the North Dakota Supreme Court voted 3-2 that the state's 2023 law protecting preborn children was unconstitutional; however, they failed to get the four-vote supermajority that was necessary to overturn the law. As a result, a lower court's 2024 ruling that placed the law on hold was overturned, halting abortions in the state for the first time in over a year.

North Dakota's law, which protects nearly all preborn children from abortion, went into effect in 2023. Under the law, it is a felony for anyone to commit an abortion, though the mother is protected from prosecution.

The law has several exceptions. It does not protect preborn children if...

• those children were conceived in rape or incest.

• the mother has been pregnant for fewer than six weeks.

• the pregnancy poses a serious physical health threat (although if the mother's life is in danger, the child does not need to be directly and intentionally killed by abortion, but could instead be delivered early).

In the Friday ruling, Justices Daniel Crothers, Lisa Fair McEvers and Daniel Narum, a district court judge who sat on the case in place of Douglas Bahr, maintained that the law is unconstitutionally vague. Though they were in the majority, North Dakota law requires four of the five justices to agree in order for a law to be found unconstitutional.

Chief Justice Jon Jensen and Justice Jerod Tufte disagreed with the idea that the law is unconstitutional, noting that the state's constitution “does not imply a right to abortion as such, and evolving public opinion on abortion cannot create one — only a constitutional amendment can do that.”

Sen. Janne Myrdal, who sponsored the 2023 law, applauded its reinstatement.

“What it settled was that North Dakota believes in the life of the mother and the child, unborn or born, and we’re going to continue to do that,” she said.

North Dakota Attorney General Drew H. Wrigley also praised the ruling, saying, “The Supreme Court has upheld this important pro-life legislation, enacted by the people’s Legislature. The Attorney General’s office has the solemn responsibility of defending the laws of North Dakota, and today those laws have been upheld.”

The Backstory:

The ruling marks the end of a back-and-forth legal battle over abortion in the state since the overturn of Roe v. Wade in 2022.

Shortly after its passage in 2023, the law was challenged by the state's only abortion facility, along with several abortionists.

In September 2024, Judge Bruce Romanick halted the law, calling it unconstitutional. At the time of his ruling, Romanick stated, “… [P]regnant women in North Dakota have a fundamental right to choose abortion before viability exists.” 

The state then appealed that ruling to the state Supreme Court, and asked Romanick to reinstate the law while the appeal proceeded. Romanick refused. In January, the state Supreme Court also refused a request to let the law stand while the case was considered.

Though abortions were legal while the case continued, there were no stand-alone abortion businesses in the state, as Red River Women’s Clinic, the facility that challenged the law, moved to Minnesota shortly after filing its lawsuit.

The Bottom Line:

There is never a constitutional right to kill another human being — and that includes the preborn. The majority of these children will now be protected from abortion in the state of North Dakota, though it is important to continue fighting for the rights of those who fall under the law's "exceptions."