By Dave Andrusko
The North Dakota Supreme Court heard oral arguments today 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. “Romanick’s ruling in October means abortion is still legal in North Dakota, though the state’s only clinic — the Red River Women’s Clinic of Fargo — shut down as it challenged the ban and has moved across the border to neighboring Minnesota,” James MacPherson of the Associated Press reported. The clinic filed a lawsuit shortly after the U.S. Supreme Court overturned Roe v. Wade.
Matthew Sagsveen, the Solicitor General for the state of North Dakota, told the justices today that Judge Romanick “misconstrued the law” by granting the injunction.
Romanick said that the Red River Women’s Clinic had a “substantial probability” of succeeding in its lawsuit, but also said there’s no “clear and obvious answer” on whether the state constitution protects a right to abortion. However, according to MacPherson,
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.”
According to MacPherson, Sagsveen bluntly told the five justices “Abortion isn’t a fundamental right protected by the constitution.”
The Solicitor General added, “We’re dealing with a situation where the district court has applied this court’s task incorrectly in anticipation of a decision and shifted the burden to the state to prove that which Red River has not proven. The situation that we’re dealing with is the district court has essentially expressed his opinion through his order that the district court doesn’t like this statute and doesn’t want to enact it. That’s inconsistent with the court’s rules and it’s really inconsistent with the separation of powers,” Sagsveen said.
It is referred to as a “trigger law” because they are laws passed by a legislative body that go into effect only if a certain thing happens—in this case, the overturning of Roe v. Wade. With the June 24th decision in Dobbs, it “triggered” the 2007 law into becoming enforceable law.