North Dakota judge says he will keep the state’s abortion ban from taking effect

Romanick affirmed his refusal to let the state’s abortion ban take effect despite the state Supreme Court ordering him to reconsider whether he had made the “appropriate” decision as a lawsuit over the law is pending.

By Dave Andrusko

Say this for North Dakota District Judge Bruce Romanick. If he can’t keep North Dakota’s abortion law on hold one way, he’ll try another—even if the state’s lone abortion clinic has already moved to Minnesota. The law protects unborn babies except in cases of rape or incest or when the life of the mother is in danger.

As Cassy Fiano-Chesser reported, last month “the North Dakota Supreme Court ordered  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, had argued that to have done so “’would essentially have the court determine the final validity of the parties’ claims.’”

Which takes us to yesterday. The Associated Press’s James MacPherson and Dave Kolpack wrote

In his earlier ruling, Romanick noted the clinic’s uphill battle. But in his ruling Monday, 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.”

Put another way, Romanick wrote, “Whether the North Dakota Constitution conveys a fundamental right to an abortion is an issue that is very much alive and active. This issue does not have a clear and obvious answer. Therefore, the Court finds that (the Red River Women’s Clinic) has a substantial probability of succeeding on the merits through showing that there is a ‘real and substantial question’ before the Court.”

Columnist Rob Port was incensed. He wrote

Currently, in North Dakota, there is not one paragraph, sentence, word, or syllable written into our state constitution with the intention of creating a right to abortion. Nor is there any precedent, set by our state courts, reading such a right into the penumbras of our state’s founding document.

To the extent that there is jurisprudence in North Dakota that has recognized the right to an abortion, it has been built on federal precedent — Roe vs. Wade, primarily — which the U.S. Supreme Court has struck down.

For his part, Attorney General Drew Wrigley told the AP he was still studying the ruling. “I’m unpersuaded by almost everything I read in the judge’s ruling and we look forward to responding,” he said.