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North Dakota Supreme Court Considers Whether There Is a State Right to Abortion

Jessica Mason Pieklo

Attorneys for the State of North Dakota defended the state's 2011 medication abortion ban by arguing North Dakota women have no state constitutional right to an abortion.

On Wednesday, the North Dakota Supreme Court heard arguments on the constitutionality of a 2011 law that opponents claim unconstitutionally restricts medication abortions.

In 2011, North Dakota lawmakers passed HB 1297, a law that banned the off-label use of two drugs used in medication abortions and restricted medication abortions to only the protocol approved by the Food and Drug Administration (FDA). Shortly after the law was passed, the Center for Reproductive Rights, on behalf of the state’s only abortion clinic, the Red River Women’s Clinic, sued to block the law, arguing the effect of the restriction would be to ban medication abortions entirely. According to HB 1297, the use of any drug to cause an abortion must meet the “protocol tested and authorized” by the FDA and outlined on the drug’s label. Like nearly all abortion providers, the Red River Women’s Clinic uses a combination of two drugs, Mifeprex and misprostol, to perform medication abortions, but one of those drugs, misoprotol, is not labeled as an abortion-inducing drug. But like a wide range of other medications, misoprostol is used for treatments beyond its original FDA labeling, and its off-label use has become the standard of care in performing medication abortions. It’s this off-label use that the North Dakota law, and similar bans in places like Oklahoma, prohibit.

Following a three-day trial this April, East Central District Judge Wickham Corwin concluded the law was “simply wrongheaded” and violated the North Dakota state constitution. In July, he issued a permanent injunction blocking the law from taking effect. This week, the North Dakota attorney general’s office asked the state supreme court to reverse that July ruling.

Unlike most challenges to abortion restrictions, the North Dakota case turns on whether the state constitution recognizes a right to privacy and abortion and not federal law. Arguing on behalf of the state of North Dakota, Attorney General Douglas Bahr insisted the North Dakota constitution does not. According to Bahr, because North Dakota’s constitution was written before a federal right to abortion was recognized in the 1973 Roe v. Wade decision, and because the state’s constitution did not expressly provide for a right to abortion, no “state right” to abortion exists. And while the Supremacy Clause of the U.S. Constitution prohibits states from applying their laws in a way that interferes with federal rights, state courts are under no obligation to interpret state laws to protect federal rights. If no state right to abortion exists and state courts are not required to read state law to protect federal rights, Bahr’s logic follows that the lower court was wrong to find HB 1297 a violation of the North Dakota constitution.

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But attorneys for the Center for Reproductive Rights and the Red River Women’s Clinic disagreed, arguing that federal constitutional rights trump state efforts to curb abortion access, that the law denies women access an important and safe alternative to surgical abortion, and that it unnecessarily inserts the interests of anti-choice legislators into the care doctors deliver to their patients. According to Center for Reproductive Rights attorneys, the lower court was correct when it ruled the law served no legitimate state purpose and blocked its enforcement.

A ruling in the case is not expected for several months.

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