State asks judge to pause ruling that struck down North Dakota’s abortion ban

SEPTEMBER 19, 2024:

BISMARCK, N.D. (AP) — The state of North Dakota is asking a judge to pause his ruling from last week that struck down North Dakota's abortion ban as unconstitutional. The state filed a motion for a stay pending appeal on Wednesday (Sept. 18, 2024), and intends to appeal the ruling to the North Dakota Supreme Court, saying the case "presents serious, difficult and new legal issues." The Center for Reproductive Rights, which represents the abortion clinic and doctors who challenged the ban, intends to oppose a stay. The judge said in his ruling he has little idea how the state Supreme Court will address the case.

SEPTEMBER 12, 2024:

BISMARCK, N.D. (AP) — A state judge struck down North Dakota's abortion ban Thursday (Sept. 12, 2024), declaring that broad guarantees of personal liberty in the constitution of his conservative, Republican-dominated state create a fundamental right to abortion before a fetus is viable.

The state's GOP attorney general promised to appeal the decision, which would take effect within a few weeks. North Dakota no longer has any abortion clinics, but legalizing abortion again would affect doctors in hospitals who believe an abortion is necessary when a pregnant patient faces a medical emergency.

Besides ruling that the state constitution protects abortion access, District Judge Bruce Romanick also said that the law is unconstitutional because it is too vague to be enforced fairly. He agreed with critics who said the law wasn't clear how its limited exceptions applied — allowing doctors to be prosecuted if other colleagues later disagreed with their medical decisions.

"We have been made to choose between saving a patient's life and possibly facing jail time," Dr. Ana Tobiasz, a fetal-maternal medicine specialist in the state capital of Bismarck, said during a Zoom news conference. "We are finally free to put our patients' health first and offer patients the standard of care without fear of facing criminal prosecution."

Courts in 10 other states, including California, Illinois and Kansas, have ruled their state constitutions protect access to abortion, according the Center for Reproductive Rights, which challenges bans and restrictions, including in the North Dakota lawsuit before Romanick. But most of those rulings came before the U.S. Supreme Court's Dobbs decision in 2022 overruling Roe v. Wade and allowing states to ban abortion — and one in Oklahoma afterward covered only when a patient's life is in danger.

A week before the Dobbs decision — with its result widely anticipated — the Iowa Supreme Court reversed a previous ruling holding that the state constitution protected abortion. Since Dobbs, top courts in Florida, Idaho and Indiana also have issued similar decisions.

"Most state supreme courts have refused to craft state constitutional rights to pre-viability abortions," Carolyn McDonnell, litigation counsel for the anti-abortion Americans United for Life. "Instead, they've recognized that abortion is an issue for the political branches."

North Dakota Attorney General Drew Wrigley said in a statement that the judge's decision contained "flaws in his analysis."

"Judge Romanick's opinion inappropriately casts aside the law crafted by the legislative branch of our government and ignores the applicable and controlling case law previously announced by the North Dakota Supreme Court," he said.

North Dakota's only abortion provider had been the Red River Women's Clinic in Fargo, but it moved a few miles to Moorhead, Minnesota, after the Dobbs decision, when a state "trigger" law banning abortion took effect. The clinic sued, as did several doctors in obstetrics, gynecology and maternal-fetal medicine, including Tobiasz.

In 2023, North Dakota's Republican-controlled Legislature revised the state's abortion laws, making abortion legal in pregnancies caused by rape or incest, but only in the first six weeks of pregnancy. Under the revised law, abortion was allowed later in pregnancy only in specific medical emergencies. The clinic and the doctors filed an amended complaint.

Red River clinic Director Tammi Kromenaker said there are no plans to reopen a clinic in North Dakota but Thursday's decision "gives us hope."

"We feel like the court heard our concerns and the physicians in North Dakota's concerns about a law that we felt went too far," she said.

In his ruling, Romanick cited how the North Dakota Constitution guarantees "inalienable rights," including "life and liberty." Those guarantees in turn protect women's personal autonomy and their ability to make medical decisions and "ultimately control (their) own destiny," he concluded.

"The abortions statutes at issue in this case infringe on a woman's fundamental right to procreative autonomy, and are not narrowly tailored to promote women;s health or to protect unborn human life," Romanick wrote in his 24-page order. "The law as currently drafted takes away a woman's liberty and her right to pursue and obtain safety and happiness."

In many respects, Romanick's order mirrors one from the Kansas Supreme Court in 2019, declaring access to abortion a fundamental right under similar provisions in that state's constitution, though the Kansas court did not limit its ruling to before a fetus is viable. Voters in Kansas affirmed that position in an August 2022 statewide vote, and the court has since issued further rulings bolstering abortion rights.

North Dakota elects both its Supreme Court justices and district court judges, but those contests are nonpartisan. Romanick was an assistant state's attorney in Burleigh County, home to the state capital of Bismarck, before being elected to his judgeship in 2000. He has been reelected every six years since, the last time in 2018, but is not seeking reelection this year.

The judge acknowledged that when North Dakota became a state in 1889, its founders likely would not have recognized abortion access as a right under the state constitution, but added that only men drafted the document and, "women were not treated as full and equal citizens."

Romanick said that in examining history and tradition, he hopes people would learn "there was a time when we got it wrong and when women did not have a voice."

"This does not need to continue for all time, and the sentiments of the past, alone, need not rule the present for all time," he wrote.

JULY 29, 2024:

BISMARCK, N.D. (AP) — A trial looming in a lawsuit challenging North Dakota's abortion ban was canceled Monday (July 29, 2024) as the judge in the case weighs whether to throw out the lawsuit. It was not immediately clear why the trial was canceled.

State District Judge Bruce Romanick issued a notice to parties regarding trial saying the Aug. 26-30, 2024, trial is canceled and will be removed from the calendar. The notice comes nearly a week after the state and plaintiffs, who include the formerly sole abortion clinic in North Dakota, made their pitches to the judge as to why he should dismiss the two-year-old case, or continue to trial.

Romanick's notice said he will issue "full findings on summary judgment and/or a new notice of trial as soon as possible following this Notice." He also stayed pending trial deadlines for various court filings until further notice.

A spokesperson for the Center for Reproductive Rights, which represents the plaintiffs, said their side did not immediately know anything beyond the notice.

North Dakota outlaws abortion as a felony crime for people who perform the procedure, but with exceptions to prevent the mother's death or a "serious health risk" to her, as well as for cases of rape or incest within the first six weeks.

The plaintiffs alleged the abortion ban violates the state constitution because it is unconstitutionally vague about its exceptions for doctors and that its health exception is too narrow. They wanted the trial to proceed.

The Associated Press sent a text message to North Dakota Attorney General Drew Wrigley.

The state had motioned for summary judgment to dismiss the complaint in the lawsuit originally brought in 2022 by the Red River Women's Clinic. Special Assistant Attorney General Dan Gaustad said in court last week that the plaintiffs' case is built on hypotheticals, that the clinic and its medical director — now in Minnesota — lack standing, and that a trial would not make a difference.

The Red River Women's Clinic filed the original lawsuit against the state's now-repealed trigger ban, soon after the U.S. Supreme Court struck down Roe v. Wade. The clinic afterward moved from Fargo, North Dakota, to neighboring Moorhead, Minnesota. In 2023, North Dakota's Republican-controlled Legislature revised the state's abortion laws. Soon after that, the clinic, joined by doctors in obstetrics, gynecology and maternal-fetal medicine, filed an amended complaint.

JULY 23, 2024:

BISMARCK, N.D. (AP) — Attorneys have argued over whether a North Dakota judge should dismiss a lawsuit challenging the state's abortion ban before trial. An attorney for the state said the plaintiffs' case rests on hypotheticals. The plaintiffs' attorney said key issues remain to be resolved at trial. The court trial is scheduled for late August 2024. State District Judge Bruce Romanick says he will rule as quickly as he can, but he also asked the plaintiffs' attorney what difference he would have at trial. The lawsuit, originally filed in 2022 by North Dakota's former sole abortion provider, claims the state's revised abortion ban is unconstitutional.

DECEMBER 22, 2023:

BISMARCK, N.D. (AP) — A North Dakota judge said Wednesday (Dec. 20, 2023) he will decide soon whether to temporarily block a part of the state's revised abortion laws so doctors can perform the procedure to save a patient's life or health.

The request for a preliminary injunction asks state District Court Judge Bruce Romanick to bar the state from enforcing the law against physicians who use their "good-faith medical judgment" to perform an abortion because of pregnancy complications that could pose "a risk of infection, hemorrhage, high blood pressure, or which otherwise makes continuing a pregnancy unsafe."

North Dakota outlaws all abortions, except in cases where women could face death or a "serious health risk." People who perform abortions could be charged with a felony under the law, but patients would not.

Physicians, to mitigate risk of prosecution, "feel like they must delay offering abortions to their patients until the patients' health has declined to the point where other physicians could not plausibly disagree that it was necessary to provide an abortion," Center for Reproductive Rights attorney Meetra Mehdizadeh said.

"Patients and physicians have experienced significant harm," she said. "For patients, the denial of their constitutional rights and forced additional health risks; and for physicians, the harm of having the threat of criminal prosecution hanging over their head every time they treat a patient with a medical complication."

The state's revised abortion laws also provide an exception for pregnancies caused by rape and incest, but only in the first six weeks, before many women know they are pregnant. It also allows for treatment of ectopic and molar pregnancies, which are nonviable situations.

Special Assistant Attorney General Dan Gaustad cited the plaintiffs' "seven-month delay" in seeking a preliminary injunction, and he disputed the "good-faith medical judgment" language. He told the judge the plaintiffs are asking him "to modify and rewrite the statute under the guise of a preliminary injunction." The law uses "reasonable medical judgment."

The Red River Women's Clinic sued the state last year after the U.S. Supreme Court's Dobbs decision, which overturned the court's landmark 1973 Roe v. Wade ruling establishing a nationwide right to abortion. The lawsuit targeted the state's since-repealed trigger ban — a ban designed to go into effect immediately if the court overturned Roe v. Wade — as unconstitutional. The clinic moved from Fargo to neighboring Moorhead, Minnesota, where abortion is legal.

The judge granted a preliminary injunction blocking the ban from taking effect last year, which the state Supreme Court upheld in March .

Chief Justice Jon Jensen wrote in the court's March decision that "it is clear the citizens of North Dakota have a right to enjoy and defend life and a right to pursue and obtain safety, which necessarily includes a pregnant woman has a fundamental right to obtain an abortion to preserve her life or her health."

Soon afterward, North Dakota's Republican-controlled Legislature passed a bill revising the state's abortion laws, which Gov. Doug Burgum signed into effect in April.

In June, the clinic filed an amended complaint, joined by several doctors in obstetrics, gynecology and maternal-fetal medicine. A jury trial is scheduled for August 2024.

NOVEMBER 14, 2023:

BISMARCK, N.D. (AP) — A North Dakota judge has ruled that he won't immediately block the state's ban on gender-affirming health care for minors, delivering an early setback to families who want the new law found unconstitutional. District Judge Jackson Lofgren on Monday (Nov. 13, 2023) denied a temporary restraining order the plaintiffs had requested. They've also asked for a preliminary injunction that would temporarily block enforcement of the law as their case proceeds. A hearing is set for January for that request. Lofgren cited the plaintiffs' "nearly five-month delay" in filing their complaint, and their argument hinging "upon inclusion in a protected class not previously recognized by the North Dakota Supreme Court or a new application of state constitutional principles."

SEPTEMBER 15, 2023:

BISMARCK, N.D. (AP) — Three families and a pediatrician in North Dakota are seeking to block the state's ban on gender-affirming health care for minors. The law passed overwhelmingly earlier this year through the state's Republican-controlled Legislature, and took effect in April when Republican Gov. Doug Burgum signed the bill. The ban includes criminal penalties for health care providers who perform sex reassignment surgeries or prescribe hormone treatments or puberty blockers for minors. One plaintiff family from Fargo says gender-affirming care has improved their child's wellbeing, but the ban has led them to receive care in Minnesota, farther away, and consider moving out of North Dakota.

MAY 8, 2023:

UNDATED (AP)- North Dakota's Republican Gov. Doug Burgum has signed a bill into law that allows public school teachers and state government employees to ignore the pronouns their transgender students and colleagues use, the governor's office announced Monday (May 8, 2023).

The new law also requires teachers to tell a parent or legal guardian if the student identifies as transgender. It also prohibits transgender students from using the bathroom of their choice without prior approval from a parent or guardian.

It is effective immediately.

Burgum said in a statement that the new law "largely codifies existing practices while reaffirming the First Amendment right to free speech ... balancing the rights and interests of students, parents and teachers."

Opponents countered that the state's Republican leaders are violating the constitutional rights of students and teachers by compelling the speech of adults and potentially exposing children to dangerous repercussions if an abusive parent doesn't approve.

"Mandatory outing of a student's trans identity violates their privacy rights at school – particularly for trans youth who cannot be safe at home. And creating a supportive working and learning environment also requires treating people with dignity and respect, including – at a minimum – calling them by the name and pronouns they want to use. These are both unlawful and discriminatory practices," said Cody Schuler, advocacy manager of the American Civil Liberties Union of North Dakota.

Supporters have said the measure boosts parental rights and brings peace of mind to teachers. Others said the governor should have done more to limit trans rights.

It's only the latest measure restricting trans rights that Burgum signed after they were passed by North Dakota's House and Senate with veto-proof majorities, part of a larger push by Republican officials nationwide to roll back the rights of their LGBTQ+ constituents.

Other new North Dakota laws prohibit transgender girls and women from joining female sports teams, from K-12 through college. They criminalize health care providers who give gender-affirming care to minors. And they limit transgender children and adults in accessing the bathrooms, locker rooms and showers of their choice, from schools to state-run colleges and correctional facilities.

At least 21 states have restricted or banned female transgender athletes' participation in female sports, and at least 14 states have restricted or banned gender-affirming care for minors. Additionally, at least eight states have enacted laws preventing transgender people from using the restrooms associated with their gender identities.

UNDATED (AP)- Teachers in North Dakota can still refer to transgender students by the personal pronouns they use, after lawmakers failed to override the governor's veto of a controversial bill to place restrictions on educators. House lawmakers voted to override the veto Monday (April 17, 2023), but fell short of the two-thirds majority needed. This happened days after Republican Gov. Doug Burgum's office announced the veto, and the Senate overrode it. The bill would have prohibited public school teachers and employees from acknowledging the pronouns a transgender student uses unless they received permission from the student's parents as well as a school administrator.

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MARCH 23, 2023:

UNDATED (AP)- North Dakota public schools and state agencies would be prohibited from using any pronouns for students and employees that don't reflect their sex at birth, under a bill approved by the legislature. The bill passed the House 60-32 on Wednesday (March 22, 2023) after passing the Senate last month. It requires the signature of Republican North Dakota Gov. Doug Burgum to become law. In 2021, Burgum vetoed a bill that would have restricted transgender students from participating in public elementary and secondary school sports. But Burgum has not said publicly if he supports this latest measure. Supporters say the bill would ease burdens on teachers, while opponents say it would harm LGBTQ youth.

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