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North Dakota Supreme Court: Restrictions on Medication Abortion Can Take Effect

Jessica Mason Pieklo

The ruling means a 2011 law that bans off-label use of abortion-inducting medications can take effect immediately.

The North Dakota Supreme Court ruled Tuesday that a state law severely restricting medication abortion can go into effect immediately.

The legal fight over medication abortion in North Dakota has dragged on for years. In 2011 lawmakers passed HB 1297, a law that bans the off-label use of two drugs used in medication abortions and restricts medication abortions to only the outdated protocol approved by the Food and Drug Administration. Soon after the law was passed, reproductive rights advocates from the Center for Reproductive Rights (CRR) sued to block the law on behalf of the state’s only abortion clinic, the Red River Women’s Clinic. Attorneys from CRR argued that if allowed to take effect, the restrictions would effectively ban medication abortions entirely. Following a three-day trial, North Dakota District Court Judge Wickham Corwin temporarily blocked the law before it could take effect in July 2011, and in April 2103 permanently blocked the law from taking effect. Attorneys for the State of North Dakota appealed that ruling in December 2013.

Unlike most legal challenges to abortion restrictions, which assert claims under federal law, the fight over medication abortion in North Dakota turned primarily on whether the North Dakota state constitution recognizes a right to privacy and abortion. North Dakota Attorney General Douglas Bahr insisted it does not, and the North Dakota Supreme Court agreed. “Our state constitution is silent about creating a state constitutional right to abortion, and the prevailing practice in the Dakota Territory and when the relevant constitutional provisions were adopted prohibited abortions except to preserve a woman’s life,” the court wrote. “The laws of the Dakota Territory and this State thus provide no long-standing tradition recognizing a separate state right to an abortion, and the drafters of our constitution are presumed to know the existing laws and to have drafted the state constitution accordingly.”

Nancy Northup, president and CEO of the Center for Reproductive Rights, blasted the decision in a statement. “Today’s decision directly conflicts with courts across the U.S. that have rejected the idea that politicians have any place in the practice of medicine or in women’s deeply personal decisions about their pregnancies, their health, their families, and their future,” she said. “The politicians pushing for these unconstitutional and downright dangerous restrictions have had only one goal in mind:  prevent North Dakota women—whom already face incredible obstacles to the severely limited reproductive health care services in their state—from exercising their legal right to abortion.”

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North Dakota is not the only states in the country to try and severely restrict access to medication abortion. Earlier this year, the U.S. Court of Appeals for the Ninth Circuit found a similar ban in Arizona unconstitutional, calling the law “a burden on women’s access to abortion.” In November 2013, the U.S. Supreme Court dismissed Oklahoma’s appeal of a state supreme court decision finding that the state’s ban on medication abortion was unconstitutional, allowing the law to remain permanently blocked. Oklahoma lawmakers have since passed another medication abortion restriction. Reproductive rights advocates have challenged Oklahoma’s latest restrictions in court as well.

Reproductive rights advocates in North Dakota have the option of petitioning the entire state supreme court for review of Tuesday’s decision.

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