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North Dakota Attorney General Says Sex Ed Program Can Move Forward

Jessica Mason Pieklo

A much needed sex education program for teens in the Fargo, North Dakota region can move forward thanks to a ruling from the state's attorney general.

Public health advocates scored a decisive victory in North Dakota as the state’s Attorney General Wayne Stenehjem ruled North Dakota State University can legally accept a three-year federal grant to conduct comprehensive sex education without running afoul of a state law that some believed put the program at risk.

The program, a three-year sex education program for Fargo-area teems was developed by two faculty members of NDSU and set to begin in late January. The program is voluntary and open to teens ages 15 to 19 with consent of their parents. Planned Parenthood is involved as one of the service providers for the program.

Administrators at NDSU put the program on hold in mid-January after attorneys for the University found a 1979 state law that they believed could prohibit the partnership with Planned Parenthood. North Dakota Century Code Statute 14-02.3-02 forbids using any government funding “as family planning funds by any person, public or private agency which performs, refers, or encourages abortion.” The law had been challenged decades ago, but attorneys for NDSU were unclear how to read the outcome of those challenges. A federal district court originally struck down parts of the law in 1980 and ruled the statute’s bans on providing funding to organizations that refer or encourage abortions were unconstitutional. But the court didn’t rule on the law’s third category, performing abortions, because the plaintiff in this case didn’t perform the procedure. Then, in 1981, the 8th Circuit Court of Appeals affirmed the district court, but NDSU General Counsel Chris Wilson said it was unclear how to interpret those court decisions and asked for clarity from the state’s attorney general.

In his opinion, Stenehjem laid out the history of the legal challenges to the statute, including the relationship between state law and Title X of the Public Health Service Act, which authorizes grants to establish and operate voluntary family planning services. The appellate court, Stenehjem explained, had ruled that North Dakota’s law conflicted with Title X, citing the 1981 court opinion that said there was a “clear” conflict between the state law and federal requirements because it would restrict grantees from making an abortion referral. “The court did not qualify or restrict its finding,” Stenehjem wrote. “It purposefully declined to rewrite the statute ‘to cure the invalidity,’ because to do so would be ‘legislative enactment clearly beyond its judicial role’ and that the legislative history and intent would not support the court amending the statute.” Because of that, he wrote, his opinion is the law was “invalidated” in its entirety with the 1981 court decision.

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NDSU Chancellor Hamid Shirvani said the legal opinion allows the professors to move forward. “We are pleased the attorney general has provided his guidance on this matter in such a timely manner,” he said in a statement. “It is good news that our concern about our faculty being in violation of the law has been removed, and they will be able to accept this generous grant and begin the work intended for these funds.”

Sarah Stoesz, Planned Parenthood Minnesota, North Dakota, South Dakota President and CEO applauded the decision. “We are gratified by this decision and we are ready to move forward. We have a responsibility to make sure that we are preparing young people in our state for productive and bright futures” Stoesz said in a statement. “Preventing teen pregnancy helps break the cycle of poverty, improves educational attainment, and improves health outcomes. Because the health and well-being of our young people is paramount, we’re thrilled that we can continue this work in North Dakota.”

“We’re also very pleased that North Dakota State University will be able to move forward with this important research which will no doubt inform public health programs for young people for years to come in the state. The professors we are partnering with at North Dakota State University are experts in adolescent health and we are proud to work with them going forward” Stoesz said.

Anti-choice activists have their sights on making North Dakota abortion and contraception-free. Thanks the Attorney General Stenehjem, North Dakota State University, and Planned Parenthood that goal just got a little more difficult.

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