North Dakota Supreme Court orders lower court judge to reconsider his decision preventing the state’s abortion ban from taking effect 

By Dave Andrusko

No two ways around it, North Dakota’s Supreme Court boxed the ears of Judge Bruce Romanick on Tuesday. Judge Romanick had entered a preliminary injunction against enforcement of the state’s comprehensive abortion ban “without first determining whether the plaintiff’s demonstrated a substantial probability of succeeding on the merits of their challenge,” David Olson wrote. The court said this “was a clear error of law.”

In its ruling, the high court said Romanick should “determine the substantial probability of succeeding on the merits and then to determine whether the injunction remains appropriate based on all the factors.”

Judge Romanick is required to respond by October 17. The law prohibits abortion except in cases of rape or incest or when the life of the mother is in danger.

Jonathan Turley, a professor at George Washington University Law School, said the order from the high court came as no surprise.

“This is entirely, if not embarrassingly, predictable,” Turley told Dave Kolpack of the Associated Press. “Judge Romanick’s opinion was notably disconnected from the governing standard on preliminary injunctions. It was strikingly improvisational and the Supreme Court is ordering the court to return to the more scripted standard for such applications.”

Judge Romanick has been busy placing road blocks in the way of enforcing the law. He “temporarily blocked the ban a day before it was due to take effect, saying North Dakota Attorney General Drew Wrigley’s certification of the U.S. Supreme Court’s decision was premature,” Olson wrote. Olson went on to say

The injunction blocking the abortion ban was to remain in effect until a further court order, or the end of litigation in the case, Romanick wrote in the Aug. 25 order.

In an appeal, Wrigley argued that Romanick should lift the stay on the abortion ban because the state is likely to succeed in the case on appeal.

Romanick denied that request on Sept. 22, writing that “the court is not convinced by the state’s argument that it was required to fully flesh out whether either party had a substantial probability of succeeding'” in the case.

In the wake of that denial, the North Dakota Supreme Court ruled this week that Romanick’s decision to enter a preliminary injunction against enforcement of the state statute without first determining whether the plaintiff’s demonstrated a substantial probability of succeeding on the merits of their challenge “was a clear error of law.”

The lawsuit was brought by the Red River Women’s Clinic, at that point the state’s only abortion clinic. It argued that the state’s constitution grants a right to abortion. The abortion clinic was since moved to Moorhead, Minnesota, but Judge Romanick argued that the law, if it were to go into effect, would implicate others, including physicians at regional hospitals.

In 2007, North Dakota passed a bill that would outlaw abortion in the state within 30 day if the U.S. Supreme Court were to overturn Roe.  “The 15-year-old legislation was triggered by the high court’s Dobbs v. Jackson ruling in June,” Jeremy Turley reported.