US North Dakota court upholds women’s constitutional right to pre-viability abortion

The US North Dakota District Court ruled Thursday that women have a constitutional right to pre-viability abortion under the constitutional interests in life, liberty, and happiness. South Central District Judge Bruce A. Romanick declared that the Amended Abortion Ban was unconstitutionally void for vagueness.

This ruling invalidates the Amended Abortion Ban, one of the strictest abortion bans in the US, which only allowed abortions where a woman’s life or health is at serious risk; or in cases of rape and incest if the pregnancy was less than six weeks along. Subject to further appeal, the right to abortion is now constitutionally protected in North Dakota.

Judge Romanick applied the “living constitution” doctrine to interpret the rights to life, liberty, and happiness guaranteed by North Dakota Constitution. He affirmed that the state constitution is a “living, breathing, vital instrument, adaptable to the needs of the day, and was so intended by the people when adopted.” Romanick also recognized that the North Dakota Constitution was drafted in a time when women were not viewed as full and equal citizens.

The court recognized that pregnancy profoundly affects the health and life of a woman and that the constitutional protections to life, liberty, and happiness should encompass a woman’s procreative autonomy. While the court acknowledged North Dakota’s history in informing constitutional interpretation, it held that “in and around 1889, North Dakota did deprive women of significant liberty interests and interests regarding their health.” However, Judge Romanick stated that this view should no longer apply in modern times.

Tammi Kromenaker, Director of Red River’s Women’s Clinic, a plaintiff in the case, stated:

I feel like the court heard us when we raised our voices against a law that not only ran counter to our state constitution, but was too vague for physicians to interpret and which prevented them from providing the high quality care that our communities are entitled to.

The Amended Abortion Ban was North Dakota’s second attempt at banning abortion. The first was attempted in 2022 and blocked by the state’s highest court in Wrigley v Romanick. This led to the current bill, which repealed the first attempt and added exceptions for cases involving death, serious health risk, or rape.

The court stated that “the decision in this matter may be one of the most important this Court issues during its time on the bench.” Given its potential precedential impact and the history of litigation around the first bill, it is anticipated that North Dakota Attorney General will appeal the ruling to the higher state courts.

Since the US Supreme Court overturned the landmark Roe v. Wade ruling in 20022 with its decision in Dobbs v. Jackson Women’s Health Organization, women’s reproductive rights have been in a state of uncertainty. The status of a woman’s abortion right is now determined at the state level, leading to significant variations across the country.