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North Dakota Supreme Court Won’t Re-Hear Medication Abortion Arguments

Jessica Mason Pieklo

The decision leaves in place an earlier ruling allowing a 2011 law restricting medication abortions to go into effect.

The North Dakota Supreme Court declined on Wednesday to re-hear arguments in a case challenging a 2011 law that has effectively cut off access to medication abortion in the state.

Attorneys representing Red River Women’s Clinic, the lone abortion clinic in North Dakota, had petitioned the state’s highest court to re-hear arguments in that case after a court ruled in October that HB 1297, a law severely limiting medication abortions, could take effect immediately.

Passed in 2011, HB 1297 bans the off-label use of two drugs used in medication abortions and restricts medication abortions to only the outdated protocol approved by the Food and Drug Administration.

The anti-choice HB 1297 also makes it illegal for physicians to provide medication abortions unless they have entered into a signed contract with another physician who has “active admitting privileges and gynecological and surgical privileges” and “who agrees to handle emergencies associated with the use or ingestion of the abortion-inducing drug.”

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Shortly after the law was passed, reproductive rights advocates from the Center for Reproductive Rights sued to block the law, arguing that if allowed to take effect, the restrictions would effectively ban medication abortions entirely. North Dakota District Court Judge Wickham Corwin, following a three-day trial, temporarily blocked the law before it could take effect in July 2011, and in April 2013 permanently blocked the law from taking effect.

Attorneys for the State of North Dakota appealed that ruling in December 2013. In October the North Dakota Supreme Court overturned the lower court decision and ruled the restrictions could take effect.

The Red River Women’s Clinic stopped providing medication abortions immediately after the October ruling.

The petition for the re-hearing had asked the North Dakota Supreme Court to “resolve any lingering ambiguity” about the practical effect of HB 1297, noting that while the court held that the district court was wrong to construe the law to ban all medication abortions, the decision did not declare the law unconstitutional.

The North Dakota Constitution requires a majority of at least four justices to declare a state statute unconstitutional. In the October ruling on HB 1297, Chief Justice Gerald VandeWalle and Justices Dale Sandstrom and Daniel Crothers found that there wasn’t a sufficient majority to declare the law unconstitutional under the U.S. Constitution, while Justices Carol Ronning Kapsner and Mary Muehlen Maring found there was a sufficient majority.

“The effect of the separate opinions in this case is that (the law) is not declared unconstitutional by a sufficient majority and that the district court judgment permanently enjoining the State from enforcing (the law) is reversed,” the opinion stated.

The clinic had also asked the North Dakota Supreme Court to confirm that a physician who obtains admitting privileges at a hospital within 30 miles of the abortion facility, as required by SB 2305, a 2013 anti-abortion restriction, would also have the ability to enter into an emergency contract with another physician as required by HB 1297.

The North Dakota Supreme Court’s refusal to re-hear the case leaves those questions unanswered.

“We will continue to defend the reproductive rights of all women—including those in North Dakotato expose the terrible harm that anti-choice laws like this cause in countless women’s lives, and to seek stronger protections against these attacks on women’s health and safety,” Center for Reproductive Rights Staff Attorney Autumn Katz said after the court’s decision.

North Dakota is one of many states in which anti-choice lawmakers have tried to severely restrict, or eliminate altogether, access to medication abortions. Last 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.

Anti-choice Oklahoma lawmakers have since passed medication abortion restrictions. Reproductive rights advocates have challenged Oklahoma’s latest restrictions in court as well.

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