ND justices uphold temporary block on abortion ban, cite 'fundamental right' to life-saving abortions

A majority opinion penned by Chief Justice Jon Jensen denies Attorney General Drew Wrigley's request to remove a preliminary injunction that prevents a so-called trigger law from taking effect.

Anti-abortion protestors hold signs toward pedestrians and passing traffic Wednesday, July 11, 2018, outside the Red River Women's Clinic in Fargo. Erin Bormett / Forum News Service
Anti-abortion protesters hold signs July 11, 2018, outside the Red River Women's Clinic in Fargo. The clinic has since moved to Moorhead.
Forum file photo

BISMARCK — The North Dakota Supreme Court has backed up a Bismarck judge's decision to temporarily block the state's near-total abortion ban as a contentious court case plays out.

The high court also asserted that residents have a "fundamental right" to abortions that preserve pregnant women's health.

A majority opinion penned by Chief Justice Jon Jensen denies Attorney General Drew Wrigley's request to remove a preliminary injunction that prevents a so-called trigger law from taking effect. Justice Jerod Tufte wrote a concurring opinion.

North Dakota lawmakers passed a bill in 2007 that would outlaw abortion in the state within 30 days if the U.S. Supreme Court ever overturned the landmark 1973 Roe v. Wade decision. The 15-year-old legislation was triggered by the federal court’s Dobbs v. Jackson ruling in June.

The Red River Women’s Clinic, which moved from Fargo to neighboring Moorhead, Minnesota, last year, sued Wrigley in July to prevent the ban from taking effect. The lawsuit asserts that the state's constitution grants the right to abortion.


On several occasions last year, Burleigh County District Judge Bruce Romanick decided the ban should remain blocked while the case is adjudicated.

Wrigley, a Republican, asked the North Dakota Supreme Court to remove the injunction, arguing that Romanick failed to consider the state's high likelihood of winning the court case. The high court heard arguments from both sides in November.

North Dakota Solicitor General Matt Sagsveen argues before the North Dakota Supreme Court on Nov. 29, 2022, in Bismarck.
Tom Stromme / The Bismarck Tribune

Jensen asserts in the opinion released Thursday, March 16, that the clinic "has demonstrated likely success on the merits that there is a fundamental right to an abortion in the limited instances of life-saving and health-preserving circumstances."

"The North Dakota Constitution guarantees North Dakota citizens the right to enjoy and defend life and the right to pursue and obtain safety, which necessarily includes a pregnant woman has a fundamental right to obtain an abortion to preserve her life or her health," Jensen writes.

Jensen also noted that legal abortions have been the status quo in North Dakota for almost 50 years, so the temporary injunction should remain in place while the case continues through the judicial system.

There are no abortion clinics operating in North Dakota after the Red River Women's Clinic moved to Moorhead.

Clinic Director Tammi Kromenaker said the Supreme Court "made the right decision and sided with the people of North Dakota today."

Tammi Kromenaker.1
Tammi Kromenaker, director of the Red River Women's Clinic, on June 24, 2022.
Chris Flynn/The Forum

“Those seeking abortion care know what’s best for themselves and their families and should be able to access such essential services if and when they need it," Kromenaker said in a news release.


Nancy Northup, president of the Center for Reproductive Rights, said the court rightfully blocked a law that would deprive North Dakotans of their reproductive freedom. The New York-based advocacy organization is providing legal representation to the clinic.

“Under the state constitution, North Dakotans are promised the rights to life, liberty, safety, and happiness, all of which protect the right to abortion," Northup said. "In state after state, people have made clear that they want this right protected, yet state officials continue to ignore the will of their citizens."

Wrigley criticized the Supreme Court, saying justices appear to "have taken on the role of a legislative body, a role our constitution does not afford them."

"The North Dakota Supreme Court today chooses a path of its very own, by holding there is now also an undefined 'health' exception to abortion regulation," Wrigley said. "Our Supreme Court did this without explicit support from our state Constitution, and without support from legislative enactments in our history of abortion regulation."

Christopher Dodson, director of the North Dakota Catholic Conference, said the court's opinion "poses new, but not insurmountable, tasks in the effort to make North Dakota a sanctuary for life."

"Thankfully, the court did not hold that there exists a right to elective abortions. It only held that the right exists in cases to save the life of the woman or to preserve her health," Dodson said.

Romanick could not be reached for comment Thursday. A spokesman for Gov. Doug Burgum declined to comment on the court's decision.

The 2007 state law 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 would not 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.

State lawmakers are considering legislation that would modify language in the trigger ban and a so-called heartbeat bill that would ban abortions after a fetal heartbeat is detected. The Senate advanced a bill in January that supporters say would reconcile differences between the state's existing abortion restrictions.

Dodson, who has worked on the legislation, said he will consult with legislators to determine if the bill should be amended following the decision.

A dozen states, including South Dakota, have banned abortions outright. Courts have blocked abortion bans from taking effect in a handful of other states, including Montana. Minnesota moved in the opposite direction, establishing extra legal protections for abortion and other reproductive care.

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