Bismarck judge maintains block on North Dakota abortion ban
Burleigh County District Judge Bruce Romanick wrote in a Monday filing that the state Supreme Court has not previously determined whether North Dakotans have a constitutional right to an abortion.
BISMARCK — A Bismarck judge doubled down on a decision to temporarily bar North Dakota’s abortion ban from taking effect after the state Supreme Court asked him to reconsider.
Burleigh County District Judge Bruce Romanick on Monday, Oct. 31, upheld his previous ruling to block the abortion ban while a legal battle continues between North Dakota officials and the Red River Women’s Clinic, which recently moved from Fargo to Moorhead, just across the Minnesota border.
The state Supreme Court asked Romanick to reconsider the temporary injunction on the abortion ban earlier this month, saying the judge failed to consider the state’s likelihood of winning the lawsuit when deciding to block the so-called trigger law.
Romanick wrote in a Monday filing that the Supreme Court has not previously determined whether North Dakotans have a constitutional right to an abortion.
"Whether the North Dakota Constitution conveys a fundamental right to an abortion is an issue that is very much alive and active," Romanick wrote. "This issue does not have a clear and obvious answer. Therefore, the Court finds that (the Red River Women's Clinic) has a substantial probability of succeeding on the merits through showing that there is a 'real and substantial question' before the Court."
Republican Attorney General Drew Wrigley said the state's lawyers are "unpersuaded" by Romanick's analysis, adding the judge's logic is "unsupported by precedent."
Wrigley said Romanick's continued upholding of the injunction "calls into question what his purpose is here."
North Dakota lawmakers passed a bipartisan bill in 2007 that would outlaw abortion in the state within 30 days if the U.S. Supreme Court overturned the landmark 1973 Roe v. Wade decision. The high court’s Dobbs v. Jackson ruling in June triggered the 15-year-old legislation.
The clinic, which was North Dakota's lone abortion provider, sued the state in July after Wrigley set off a 30-day countdown by certifying the U.S. Supreme Court’s decision.
In the months that followed, Romanick twice blocked the trigger law a day before it was due to take effect, saying Wrigley's certification was premature. Wrigley has said he acted according to the law.
If the 2007 state law takes effect, it would make performing an abortion a Class C felony, punishable by up to five years in prison and a $10,000 fine. A pregnant woman cannot be penalized for performing an abortion on herself.
Abortions would still be permitted if the mother's life is in danger and in cases of rape or incest, though a medical provider may still have to prove in court the procedure was justified.
Tammi Kromenaker, the director of the women's clinic, applauded Romanick's decision on Monday, calling it "a positive step." Kromenaker noted that keeping abortion legal allows medical providers to care for pregnant patients without wading through the ambiguity that the trigger law would bring.
Forum News Service reported Monday morning that anti-abortion lawmakers and advocates are working with representatives of North Dakota’s medical field on legislation to reconcile differences in state law that some doctors say could hinder care for patients with pregnancy complications.
The state Supreme Court will decide how the case proceeds after Monday, though it appears likely the lawsuit will end up back in Romanick's court. Romanick's final ruling in the case could eventually be appealed to the Supreme Court by the losing party.
At least 13 states, including South Dakota, have already banned most abortions. Courts have blocked abortion bans from taking effect in a handful of other states, including Montana.