BISMARCK, N.D. (AP) — A North Dakota state judge struck down a ban on abortion on Thursday, declaring that the sweeping guarantee of personal liberty in his conservative, Republican-dominated state’s constitution creates a fundamental right to abortion before the fetus is viable.
The state’s Republican attorney general said he would appeal the decision, which would take effect within weeks. There are no longer any abortion clinics in North Dakota, but re-legalizing abortion would impact doctors in hospitals who deem an abortion necessary when a pregnant patient has a medical emergency.
In addition to ruling that the state constitution protects abortion access, District Judge Bruce Romanick said the law was unconstitutional because it was too vague to be fairly enforced. He agreed with critics who said the law was unclear about how to apply its circumscribed exceptions – doctors could face criminal prosecution if other colleagues later disagree with their medical decisions.
“We had to choose between saving a patient’s life and a possible prison sentence,” said Dr. Ana Tobiasz, a fetal and maternal medicine specialist in Bismarck, the state capital, during a Zoom news conference. “We are finally free to put our patients’ health first and provide them with standard care without fear of criminal prosecution.”
Courts in 10 other states, including California, Illinois and Kansas, have ruled that their state constitutions protect abortion access, according to 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, which overturned Roe v. Wade and allowed states to ban abortions — and an Oklahoma decision later that regulated abortions only when a patient’s life was in danger.
A week before the Dobbs decision—the outcome of which was widely expected—the Iowa Supreme Court overturned an earlier ruling that the state constitution protected abortion. Since Dobbs, the supreme courts in Florida, Idaho and Indiana have also made similar decisions.
“Most state supreme courts have refused to articulate states’ constitutional rights to previability abortions,” said Carolyn McDonnell, a trial attorney for anti-abortion group Americans United for Life. “Instead, they have recognized that abortion is a political issue.”
North Dakota Attorney General Drew Wrigley said in a statement that the judge’s decision contained “errors in his analysis.”
“Judge Romanick’s opinion improperly disregards the law crafted by the legislative branch of our government and ignores applicable and authoritative case law previously promulgated by the North Dakota Supreme Court,” he said.
The only abortion provider in North Dakota was the Red River Women’s Clinic in Fargo, but it moved a few miles away to Moorhead, Minnesota, after the Dobbs ruling, when a state “trigger” law banning abortion went into effect. The clinic filed suit, as did several obstetrician-gynecologist and maternal-child physicians, including Tobiasz.
In 2023, North Dakota’s Republican-dominated legislature revised the state’s abortion laws, making abortions legal for pregnancies caused by rape or incest, but only in the first six weeks of pregnancy. Under the revised law, abortions later in pregnancy were only allowed in certain medical emergencies. The clinic and 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 the court heard our concerns and the concerns of North Dakota physicians about a law that we felt went too far,” she said.
In his ruling, Romanick argued that North Dakota’s Constitution guarantees “inalienable rights,” including “life and liberty.” These guarantees, in turn, protect women’s personal autonomy and their ability to make medical decisions and “ultimately control their own destinies,” he concluded.
“The abortion laws at issue in this case violate a woman’s fundamental right to reproductive autonomy and are not designed to promote the health of women or protect unborn human life,” Romanick wrote in his 24-page ruling. “The law, as currently drafted, deprives women of their liberty and their right to safety and happiness.”
In many ways, Romanick’s ruling is similar to a 2019 Kansas Supreme Court ruling that declared abortion access a fundamental right under similar provisions in the state constitution, although the Kansas court did not limit its ruling to before a fetus is viable. Kansas voters upheld that position in a statewide vote in August 2022, and the court has since issued other rulings strengthening abortion rights.
North Dakota elects both its Supreme Court justices and its district judges, but those elections are nonpartisan. Romanick served as an assistant prosecutor in Burleigh County, home to the state capital of Bismarck, before being elected judge in 2000. He has been re-elected every six years since then, most recently in 2018, but he is not seeking re-election this year.
The judge acknowledged that North Dakota’s founding fathers probably would not have recognized access to abortion as a right enshrined in the state constitution when it became a state in 1889, but added that the document was written entirely by men and “women were not treated as full and equal citizens.”
Romanick said he hoped that by engaging with history and tradition, people would learn “that there was a time when we did it wrong and when women had no voice.”
“This need not remain so forever, and the feelings of the past need not forever dominate the present,” he wrote.
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The spelling of Moorhead, Minnesota has been corrected.
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Hanna reported from Topeka, Kansas. Associated Press writer Jim Salter in O’Fallon, Missouri, contributed to this report.
