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Here’s a look at abortion legislation likely to come forward in North Dakota next year

Anti-abortion lawmakers and advocates are working with North Dakota’s medical community on legislation to square differences in state law that some doctors say could hinder care for patients with pregnancy complications.

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The chamber of the North Dakota Senate is pictured on Tuesday, Jan. 12, 2021.
Jeremy Turley / Forum News Service
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BISMARCK — Prominent 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 pregnant patients with life-threatening ailments.

A seismic U.S. Supreme Court ruling in June overturned the 1973 Roe v. Wade decision, triggering 15-year-old legislation that prohibits abortion in North Dakota. A Bismarck judge has so far prevented the law from taking effect.

State Sen. Janne Myrdal, a fierce abortion opponent, said North Dakota’s restrictive abortion laws will be “quite extraordinary” when the trigger ban becomes active.

But the Edinburg Republican confirmed she’s working with the North Dakota Catholic Conference on a “clean-up bill” for next year’s legislative session that would adjust some definitional disparities on the state’s books.

Doctors and Democratic lawmakers have raised concerns about conflicting or ambiguous language in state law that could cause medical providers to think twice before treating patients suffering from pregnancy complications.

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If the trigger law takes effect, it would be unclear whether North Dakota health care providers could legally perform necessary procedures on patients with ectopic and other non-viable pregnancies, said Dr. Ana Tobiasz, a maternal-fetal medicine specialist in Bismarck.

Ectopic pregnancies occur when a fertilized egg implants outside of a woman’s uterus. The complication happens in about 2% of pregnancies.

The trigger law does not include an exception for doctors treating ectopic pregnancies. However, it offers medical professionals an “affirmative defense” for acting in their best professional judgment, meaning 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.

A separate chapter of state law called the Abortion Control Act makes an explicit exception for ectopic pregnancies. The difference in the laws creates a legal gray area for doctors, Tobiasz said.

“In the medical field we believe ectopics are life threatening,” Tobiasz said. “But that is a potential situation where someone may try to take you to court for that.”

Catholic Conference Director Christopher Dodson, an anti-abortion attorney, said there is no legal ambiguity for doctors treating ectopic pregnancies, though the bill he and Myrdal are crafting would square the language on the books to make that even clearer.

Dodson noted that he and Myrdal have been “in positive discussions” with the North Dakota Medical Association and the North Dakota Hospital Association to create legislation that alleviates the medical community’s concerns.

Tobiasz, who is working with the medical association, doesn’t think there should be restrictions on abortion, but she would support a bill that reconciles differences in state law “as a compromise.”

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The Bismarck doctor also objects to the lack of exceptions to the impending abortion ban. The trigger law contains affirmative defenses for medical professionals who perform an abortion in cases of rape and incest, while the Abortion Control Act does not mention rape or incest.

Doctors wouldn’t feel comfortable performing abortions on rape and incest victims since there’s still a chance they could be charged with a felony, Tobiasz said.

“It’s very, very troublesome for those of us who are trying to care for patients wondering if we’re going to go to jail for what should be the standard of care,” Tobiasz said.

Dodson said it’s “still in discussion” whether there should be affirmative defenses or exceptions for cases of rape and incest, but he hopes to have a consensus from stakeholders before the bill is filed.

Photo: Janne Myrdal transgender athletes debate
Republican State Sen. Janne Myrdal, a fierce abortion opponent, confirmed she’s working with the North Dakota Catholic Conference on a “clean-up bill” for next year’s legislative session that would adjust some definitional disparities on the state’s books.
Jeremy Turley / Forum News Service

In August, Democratic State Reps. Karla Rose Hanson and Zac Ista asked Republican Attorney General Drew Wrigley for an official opinion to clarify whether doctors can legally perform abortions in cases of ectopic pregnancy, rape and incest.

Wrigley has not responded to the request, though he previously told Forum News Service he could not answer some of the questions due to pending litigation.

Myrdal and Dodson said they are working on other legislative proposals that would:

  • Establish a criminal penalty for coercing someone to get an abortion. 
  • Eliminate taxes on the sale of baby diapers and child car seats to aid parents. 
  • Expand an abortion alternative program that reimburses pregnancy centers, maternity homes and adoption agencies for services provided to pregnant women.
  • Close gaps in programs that provide health coverage and other benefits to low-income families. 

The legislature will begin its regular session in January.

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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