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Dem-NPL lawmakers ask for attorney general opinion on 'conflicts' within North Dakota's abortion laws

Reps. Karla Rose Hanson and Zac Ista have asked Republican Attorney General Drew Wrigley to clarify how abortion will be regulated in the state after a near-total ban on the practice takes effect.

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Protesters and patient escorts stand in front of the Red River Women's Clinic in downtown Fargo on Wednesday, July 27, 2022.
David Samson/The Forum
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BISMARCK — Two Democratic-NPL lawmakers have asked North Dakota Attorney General Drew Wrigley to weigh in on what they view as inconsistencies between the state's abortion laws.

Reps. Karla Rose Hanson, of Fargo, and Zac Ista, of Grand Forks, announced Monday, Aug. 1, they had requested an opinion from Wrigley, a Republican, to clarify how abortion will be regulated in the state after a near-total ban on the practice takes effect.

In 2007, the North Dakota Legislature passed a "trigger" bill that would ban most abortions in the state within 30 days if the U.S. Supreme Court overturned the landmark 1973 Roe v. Wade decision.

Wrigley set off the 30-day countdown in late June after the Supreme Court's landmark Dobbs decision, but last week, a Bismarck judge ruled in favor of the state's only abortion clinic and temporarily blocked the ban a day before its effective date. The ban is now slated to go into effect on Aug. 26.

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North Dakota Attorney General Drew Wrigley has a conversation at the GOP state headquarters in Bismarck on Tuesday, June 14, 2022.
Kyle Martin / The Forum

Hanson and Ista argue the state's existing abortion laws conflict with the impending trigger law.

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The legislators say conflicts between the trigger statute and a separate chapter of state law called the Abortion Control Act could result in doctors hesitating before treating ectopic pregnancies and rape victims.

"The state's legal community, health care community, and the general public are left in a state of confusion and uncertainty as to which abortion requirements, prohibitions, restrictions, and penalties are applicable in certain medical situations," Hanson and Ista wrote.

Wrigley told Forum News Service his office is reviewing the request, though he noted there are several well-established reasons an attorney general would not issue an opinion, including if a matter is the subject of pending litigation.

If there are questions Wrigley believes he can respond to in an opinion, he said he would offer his perspective as quickly as possible.

Ectopic pregnancies, rape and incest

Hanson previously told Forum News Service she worries about doctors having to think twice before providing medical care to a patient suffering from an ectopic pregnancy — a potentially life-threatening condition occurring in about 2% of pregnancies in which a fertilized egg implants outside of the uterus. Ectopic pregnancies are never viable.

The trigger law does not include an exception to the abortion ban for doctors treating ectopic pregnancies.

However, it offers medical professionals an “affirmative defense” for acting in their best professional judgment or for performing an abortion in cases of rape and incest. That means a doctor could still be charged with a Class C felony for violating the law but would have a defense in court that could negate criminal liability.

Meanwhile, the Abortion Control Act makes an explicit exception for ectopic pregnancies. Hanson said the discrepancies could generate confusion.

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Wrigley previously deferred most questions about the application of the abortion ban to county prosecutors who are charged with enforcing the law, but he told Forum News Service the Abortion Control Act’s carve-out for ectopic pregnancies “controls” in this case.

Karla Rose Hanson
Karla Rose Hanson

Ista noted it's troubling that doctors could still be criminally charged for performing an abortion on a victim of rape or incest under the trigger law.

"In those circumstances (rape and incest), the trigger ban puts the high burden on the doctor to prove an affirmative defense to the felony charge," Ista said. "This means the doctor is guilty until proven innocent. That's a risk doctors should never have to take when providing emergency health care.”

In the request for an opinion, the lawmakers asked Wrigley to:

  • Determine whether the trigger law or the Abortion Control Act takes precedence in instances where they conflict.
  • Decide whether a doctor can be prosecuted for treating an ectopic pregnancy.
  • Opine on whether the Abortion Control Act allows a doctor to be prosecuted for performing an abortion in cases of rape and incest.

The request for an opinion follows a Forum News Service story in which Hanson and an attorney representing North Dakota hospitals raised many of the same questions about the possible conflicts between the state's abortion laws.

Read the full request for an attorney general opinion here:

Jeremy Turley is a Bismarck-based reporter for Forum News Service, which provides news coverage to publications owned by Forum Communications Company.
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