State Legislation

North Dakota AG says District Judge erred in issuing a preliminary injunction against its trigger law

By Dave Andrusko

The North Dakota Supreme Court has scheduled oral arguments next week to determine whether South Central District Judge Bruce Romanick erred in issuing a preliminary injunction against a law which protects unborn babies except in cases of rape or incest or when the life of the mother is in danger.

“More than a dozen states, including North Dakota, had passed so-called trigger laws that were designed to outlaw most abortions if the high court threw out the constitutional right to end a pregnancy,” according to Dave Kolpack of the Associated Press.

Last month Judge Romanick rejected a request from Attorney General Drew Wrigley to let the law take effect while the lawsuit went forward.

Wrigley said that Judge Romanick made a mistake when he said there’s not a “clear and obvious” answer on whether the state Constitution prohibits abortion and that therefore the case should go forward, according to Kolpack. “In order to determine that the outcome favors the clinic Romanick would have to first find that a constitutional right to abortion existed, Wrigley said.”

The Supreme Court agreed with Wrigley. It ordered Judge Romanick to reconsider the abortion facility’s chances of success at contesting the trigger law — something he refused to take into consideration in his previous ruling. Failing to do so, the high court said, “was a clear error of law.”

Unimpressed, Judge Romanick, who has placed one road block after another in the way of the law’s enforcement, argued that to have done so “’would essentially have the court determine the final validity of the parties’ claims.’”

The Associated Press’s James MacPherson and Kolpack wrote

In his earlier ruling, Romanick noted the clinic’s uphill battle. But in his ruling Monday [October 31], he said the clinic has a “substantial probability” of succeeding, though he noted that the question of whether abortion is a constitutional right in North Dakota has been contentious and has not been decided by the state’s highest court. …

He also wrote there is a “substantial probability” that the law is unconstitutional because of the constraint it places on doctors. …

This puts unreasonable burdens on doctors and pregnant women that are “not reasonably related to the goal of preserving life” — which the state has said is the purpose of the law. He wrote that if “women do not have a reasonable avenue in which to get safe abortions when their lives are in danger, the Statute does not serve its intended purpose.”

The Red River Women’s Clinic, which has already moved its services from Fargo to Moorhead, Minnesota, filed a lawsuit shortly after the U.S. Supreme Court overturned Roe v. Wade.

In its most recent submission to the North Dakota Supreme Court, the state wrote, “Such leaps in analysis do not appear to be the product of a rational mental process leading to a reasoned determination. The district court’s determination on this issue is diminished and unsupported by its own analysis and admission that the ‘answer to whether the Statute is constitutional is not obvious.’”

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