The North Dakota Supreme Court hears arguments involving abortion via Zoom on Nov. 21, 2024. (Screenshot Bismarck Tribune via the North Dakota Monitor)

(North Dakota Monitor) – North Dakota’s solicitor general called on the North Dakota Supreme Court to reinstate an abortion law struck down by a lower court until a final decision in the case is made, arguing that the ban must remain in effect because the state has a compelling interest in protecting unborn life.

“We say that not to be dramatic, but because the district court seems to have lost sight of that,” Phil Axt told justices Thursday.

The ban, signed into law by Gov. Doug Burgum in April 2023, made abortion illegal in all cases except rape or incest if the mother has been pregnant for less than six weeks, or when the pregnancy poses a serious physical health threat.

South Central Judicial District Court Judge Bruce Romanick vacated the law in September, declaring it unconstitutionally vague and an infringement on medical freedom.

He further wrote that “pregnant women in North Dakota have a fundamental right to choose abortion before viability exists.”

The law went into effect just weeks after the North Dakota Supreme Court ruled the state’s previous abortion ban unconstitutional and found that women have a right to seek an abortion for health reasons.

Axt argued Thursday that Romanick’s judgment striking down the 2023 law conflicts with the Supreme Court’s prior ruling, and that Romanick’s legal analysis contains “glaring errors.” Axt claimed there’s nothing in the state constitution that supports a right to abortion until the point of viability.

“It’s been clear since our territorial days that in order to justify killing another human being, there must be a threat of death or serious bodily injury,” Axt said.

Meetra Mehdizadeh, an attorney representing the plaintiffs, said to reverse Romanick’s decision even temporarily would be to disregard many serious problems he identified with the statute.

The ban does not sufficiently explain to doctors when they may legally provide abortions — which chills their ability to provide necessary health care for fear of prosecution, she said.

“The district court correctly held that the ban violates the rights of both physicians and patients, and staying the judgment and allowing the state to continue to enforce an unconstitutional law would be nonsensical,” Mehdizadeh said.

Axt countered that the law is not vague, and that doctors are incorrect to assume they would face criminal penalties for good-faith medical decisions.

If doctors are confused about the ban, said Axt, “the solution is not striking down the law — it is providing some professional education.”

In briefs filed with the court, the state also argued that Romanick’s judgment vacating the law seems to conflict with his original order declaring the law unconstitutional.

While the order identifies a right to abortion until the point of fetal viability, Romanick’s judgment does not include any reference to viability. The state is now confused as to whether it can now enforce any restrictions on abortion, Axt said.

North Dakota still must observe abortion regulations established under other laws not challenged in the lawsuit, Mehdizadeh said.

Axt further claimed that Romanick’s judgment should be put on hold because it addresses a “novel” area of law, and because it takes a supermajority of the Supreme Court to declare a statute unconstitutional.

“Statutes should not be presumed unconstitutional until this court has had an opportunity to weigh in on the matter, and a super majority of this court is of that opinion,” Axt said.

Justice Daniel Crothers said he questioned Axt’s logic.

“Any novel issue where the district court declares something unconstitutional, it’s sounding like you’re suggesting that we should presume that it’s wrong,” Crothers said to Axt.

The appeal is the latest step in a lawsuit brought against the state by a group of reproductive health care doctors and a Moorhead, Minnesota-based abortion provider, Red River Women’s Clinic. The clinic previously operated in Fargo, but moved across the state line after Roe v. Wade was overturned in 2022.

The ban, passed with overwhelming support by both chambers of the Republican-dominated Legislature, set penalties of up to five years in prison and a maximum fine of $10,000 for any health care professionals found in violation of the law.

The arguments were only on whether Romanick’s decision should be put on hold during the appeal, not on the merits of the case itself, which the Supreme Court will consider separately. The justices took the matter under advisement.