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North Dakota Law Forcing Doctors to Spread Abortion Misinformation Won’t Take Effect—Yet

Auditi Guha

A lawsuit claims two anti-choice North Dakota laws violate doctors' constitutional rights by forcing them to “convey false information and non-medical statements” to patients.

A law passed by North Dakota Republicans requiring physicians to misinform their patients about medication abortion being “reversible” won’t go into effect on August 1 as a legal challenge continues.

The American Medical Association (AMA) and the Center for Reproductive Rights filed a lawsuit last month on behalf of the Red River Women’s Clinic, North Dakota’s only abortion clinic. The suit challenges two laws that require doctors to tell their patients “misleading and patently false information.”

HB 1336, signed by Gov. Doug Burgum (R) in March, would force doctors to tell patients that “it may be possible to reverse the effects of an abortion-inducing drug”—a medically unsupported statement.

The state reached an agreement with plaintiffs last week that it would not begin enforcing HB 1336 until Chief U.S. District Judge Daniel L. Hovland rules on the request for a preliminary injunction.  The state’s response to the request for a preliminary injunction is due Friday, and the plaintiffs may file a response by July 31. The federal judge is expected to issue a decision in a month. The state attorney general’s office is reviewing the complaint, a spokesperson said in an email.

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Though the concept of abortion reversal has not been accepted by legitimate medical organizations, it remains popular among anti-choice legislation mills and state lawmakers.

“Our claim in this lawsuit is that the government should not, and really cannot, constitutionally force physicians to act as a mouthpiece for the state, speak controversial messages, or messages which are patently false, as it entails forcing physicians to violate their medical ethics and impose harms on their patients,” Molly Duane, an attorney with the Center for Reproductive Rights, told Rewire.News.

Medication abortions involve a combination of two drugs—mifepristone, taken first, and then misoprostol. The abortion pill “reversal” is “unproven and unethical” according to the American College of Obstetricians and Gynecologists (ACOG). A paper by two California doctors opposed to abortion rights has been used as evidence by Republican lawmakers to pass “reversal” bills, even though the study only involved six women, as Rewire.News reported in its 2017 False Witnesses series.

Filed June 25, the AMA lawsuit also challenges the state’s 2009 Abortion Control Act, which forces doctors to inform their patients that an abortion “will terminate the life of a whole, separate, unique, living human being.” 

The plaintiffs say such laws not only harm patients and jeopardize the patient-doctor relationship but also violate doctors’ constitutional rights by forcing them to “convey false information and non-medical statements” to patients. 

Tammi Kromenaker, director of Red River Women’s Clinic in Fargo, told Rewire.News she is “pleased to be partnering with the AMA to fight for the integrity of the information that we have to give to our patients. We believe that it is important for all of those who believe in integrity in medicine and that, simply put, patients shouldn’t be lied to, come together to take a stand against misinformation. Patients should not be given medically inaccurate information as part of their decision making process.”

The abortion landscape in North Dakota is “bleak,” Kromenaker said, with a quarter of her clinic’s patients having to drive between two-and-a-half to four hours each way.

Burgum signed a bill in April banning dilation and evacuation abortions and criminalizing physicians who perform the common second trimester abortion procedure, though the bill will not take effect until a federal appeals court or the U.S. Supreme Court allows its enforcement.

North Dakota has a range of abortion restrictions in place, according to NARAL. These include a ban on abortions after 20 weeks, a parental consent requirement for minors, a forced 24-hour waiting period, a ban on private health insurance covering abortion, and a law preventing abortion coverage for public workers.

Lawmakers in eight states have passed laws requiring abortion providers to tell patients about abortion “reversal,” and in five states those requirements are in effect. In March, Arkansas expanded its existing law to require providers to notify patients in writing that medication abortion can be stopped midway. Oklahoma legislators approved a similar bill criminalizing physicians who fail to inform patients about the possibility of reversing the process.

Arizona paid $550,000 in legal fees in 2017 after facing a challenge over a 2015 law promoting abortion “reversal.” Arizona doctors called the law “tantamount to quackery,” and the governor eventually signed a bill repealing the measure, Rewire.News reported.

“This is a troubling trend in abortion restrictions because this isn’t really about the abortion procedure itself, so much as it is targeting physicians who happen to provide abortion care and really their free speech rights and their ability to provide the best and most quality care to their patients,” Duane said. “The premise of this lawsuit is to highlight the fact that physicians have First Amendment rights just like everybody else, and that they do not lose their rights just because they are providing abortion care.”

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