North Dakota Supreme Court declines to rehear arguments in decision that upheld law regulating chemical abortions

 

By Dave Andrusko

North Dakota Supreme Court

North Dakota Supreme Court

In October, NRL News Today reported that the North Dakota Supreme Court had reversed a ruling by District Judge Wickham Corwin and upheld a 2011 law which regulates how chemical abortifacients—generically referred to as “RU486”—are administered to women.

Tammi Kromenaker, director of North Dakota’s sole abortion provider, almost immediately told the Associated Press that the Red River Women’s Clinic has ceased performing chemical abortions at its Fargo clinic. Kromenaker has told the AP that about 20% of the 1,300 abortions the clinic performs annually are done with drugs and not surgically. Surgical abortions are still being performed.

The clinic had 14 days to petition the state Supreme Court for a rehearing before the law took effect. David Brown, its attorney from the Center for Reproductive Rights (CRR), subsequently did just that.

The CRR “petitioned the high court for a rehearing in November to clarify what it called ambiguities in the effects of House Bill 1297,” according to the Forum News Service. In a story posted Wednesday morning, the news outlet said the state Supreme Court declined to rehear arguments.

Which is not to say the decision was simple. How could it be when the fight over chemical abortions in North Dakota had such a lengthy history?

According to testimony introduced at the trial, chemical abortions (proponents call them “medication abortions”) were first performed in North Dakota in 2007.

HB 1297 mandates that if a drug is used to induce abortion, its label must say it is intended to be used as an abortifacient. Misoprostol is one of the two drugs that make up the RU-486 abortion regimen (along with mifepristone) but it is labeled for the treatment of stomach ulcers, not to induce abortions.

Judge Corwin granted a temporary injunction in August 2011 and followed that up by permanently blocking the law in July 2013.

Corwin not only wrote that “No compelling state interest justifies this infringement,” he also harshly criticized a state witness saying her “opinions lack scientific support, tend to be based on unsubstantiated concerns and are generally at odds with solid medical evidence.”

In fact, her credentials are impeccable. She is a respected medical doctor with years of clinical experience and also someone who has followed this issue for a number of years and published several journal articles dealing with the issue.

The state then appealed Corwin’s 58-page decision to the state Supreme Court.

The CRR argued that while the law might not be an outright ban on chemical abortions, “it would act as a de facto ban by requiring the clinic to use an outdated protocol on the U.S Food and Drug Administration’s approved label for mifepristone, which would prevent women whose pregnancy is past 49 days from having a medication abortion,” according to Mike Nowatzki of the Forum News Service.

The case was unusual in several respects. For example, under the North Dakota state constitution, at least four (of the five) members of the court must agree that a state statute is unconstitutional.

According to Nowatzki,

“The Supreme Court was evenly split on whether the law violated the state constitution, with Justices Mary Muehlen Maring and Carol Ronning Kapsner finding it did and Chief Justice Gerald VandeWalle and Justice Dale Sandstrom finding it didn’t. Justice Daniel Crothers concluded that the state constitutional issue didn’t need to be decided.

The justices also split on whether HB 1297 violated the federal Constitution:

“Maring, Kapsner and Crothers found the law violated the U.S. Constitution, while VandeWalle found that it wasn’t unconstitutional at the federal level. Sandstrom opined that the federal question didn’t belong before the state Supreme Court.”

Attorney General Wayne Stenehjem told Nowatzki, “I think the important thing is they did not succeed in establishing a state constitutional right to abortion, which was their goal.”