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North Dakota lawmakers to tackle abortion questions; critics want broader exceptions

North Dakota state Sen. Janne Myrdal is sponsoring a bill that she says would reconcile differences between an abortion ban held up in court and preexisting state abortion laws.

North Dakota state Sen. Janne Myrdal, R-Edinburg, center, visits with Attorney General Drew Wrigley, right, and Deputy Attorney General Claire Ness on Thursday at the Capitol in Bismarck.
North Dakota state Sen. Janne Myrdal, R-Edinburg, center, visits with Attorney General Drew Wrigley, right, and Deputy Attorney General Claire Ness on Thursday, Jan. 12, 2023, at the Capitol in Bismarck.
Tom Stromme / The Bismarck Tribune
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BISMARCK — Conservative lawmakers have set out plans to revise North Dakota’s abortion laws as the state’s near-total ban on the procedure hangs in the balance.

A seismic U.S. Supreme Court ruling in June overturned the 1973 Roe v. Wade decision, triggering 16-year-old legislation that prohibits abortion in North Dakota.

Bismarck-based judge Bruce Romanick has temporarily blocked the trigger ban as a lawsuit plays out, but the state Supreme Court is due to decide whether to allow the law to take effect.

The Red River Women's Clinic, which brought the lawsuit against the state, moved from Fargo to neighboring Moorhead, Minnesota, last summer. The facility’s departure means there are no abortion clinics in North Dakota.

Sen. Janne Myrdal, R-Edinburg, is sponsoring Senate Bill 2150, which she says “undergirds the intent of the legislative body for the last almost 20 years.” Critics say the legislation still needs broader exceptions for performing abortions in dire cases.

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The proposal aims to eliminate confusion among medical providers and to reconcile differences between the abortion ban held up in court and state abortion laws that existed before Roe v. Wade was overturned, Myrdal said.

The 21-page bill would change “affirmative defenses” for rape, incest and saving the life of the mother into exceptions.

Under the trigger ban, doctors could be charged with a Class C felony for performing an abortion during medical emergencies and in cases of rape or incest, but they could argue in court that the affirmative defenses outlined in the law protect them from criminal liability.

The seemingly minor change in Myrdal’s bill means medical providers wouldn’t have the threat of prosecution hanging over their head while treating certain serious pregnancy complications, said Dr. Ana Tobiasz, a maternal-fetal medicine specialist in Bismarck.

Senate Majority Leader David Hogue, R-Minot, said he supports turning the trigger ban’s affirmative defenses into exceptions.

“That’s not something that should be part of the thought process of a medical provider, so I don’t see why that burden shouldn’t rest with the state,” said Hogue, who is an attorney.

The proposal also explicitly allows for the treatment of ectopic pregnancies, which occur when a fertilized egg implants outside of a woman’s uterus. Ectopic pregnancies are almost never viable and require medication or surgery to terminate.

The trigger ban does not include a carve-out for doctors treating ectopic pregnancies, but an existing section of law called the Abortion Control Act has an explicit exception for treating the complication.

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Tobiasz previously expressed worry that the legal gray area would seed doubt for doctors, but she said Myrdal’s bill would make it clear that they can treat ectopic pregnancies or miscarriages without fear of legal repercussions.

Hogue, who considers himself “pro-life,” said Myrdal is the Senate portfolio leader on “life issues” and she “sort of reflects this general sense of the Senate on what we should be doing” on abortion.

The Senate Judiciary Committee will hold a public hearing for the bill at 2:30 p.m. on Monday, Jan. 16.

Critics emerge

Myrdal said pro-abortion rights advocates shouldn’t oppose her bill since it contains “no substantive changes” to the state’s abortion laws other than changing the trigger ban’s affirmative defenses to exceptions.

But the content of the legislation has raised some alarm bells in legislative and medical circles.

Rep. Karla Rose Hanson, a Fargo Democrat who supports open access to abortions, said she’s “hugely concerned” by a provision in the bill that would limit abortions for victims of rape and incest to just the first six weeks of a pregnancy. Many women might not know they’re pregnant that early, she noted.

Hanson, who requested an attorney general opinion last summer on “conflicts” within North Dakota’s abortion laws, said “It’s unfortunate that (Senate Bill 2150) is still such a strict restriction.”

Karla Rose Hanson Headshot2.jpg
North Dakota Rep. Karla Rose Hanson, D-Fargo
Submitted photo

Myrdal said the six-week limit on abortions for rape and incest victims would marry the trigger ban with the so-called “heartbeat bill,” which federal courts blocked after the Legislature approved it in 2013.

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Republican Attorney General Drew Wrigley is appealing the block on the “heartbeat bill,” which bans abortions as soon as a fetal heartbeat is detected — as early as six weeks — “except when a medical emergency exists that prevents compliance” with the law.

Wrigley said the law is impacted by the Dobbs decision, and “we believe it no longer to be a prohibited piece of legislation.”

Myrdal added that abortions are very rarely performed on known victims of rape or incest in North Dakota.

Hanson cites further concerns in the bill not including mental and emotional health in a medical emergency, “a lack of parity” with physical health emergencies.

“In general, our state likes to consider our mental and emotional health on par with physical health, and there is not an exception for consideration if a woman is having a health emergency with that aspect of her health,” she said.

Tobiasz believes abortion should be legal in North Dakota, but she said Myrdal’s bill would give some needed clarity to medical providers.

However, Tobiasz said she plans to propose a small but meaningful amendment to the bill. As written, the legislation would only allow doctors to abort pregnancies in a medical emergency to prevent a patient’s “death or substantial and irreversible physical impairment.” Tobiasz would like to turn the “and” into an “or.”

Tobiasz said the current phrasing wouldn’t allow for abortions when a patient’s complications are substantial but not necessarily irreversible. For example, a woman’s water breaking before a pregnancy is viable represents a severe health risk, but if treated, the complication may not permanently impair the mother, she noted.

”Do we have to wait before they’re in organ failure before we intervene?” Tobiasz said.

Courtney Koebele, executive director of the North Dakota Medical Association, said her organization will also advocate for ensuring doctors can adequately care for patients in emergency situations.

Other abortion-related bills

  • Myrdal is sponsoring Senate Bill 2129, which would earmark $1.6 million for establishing and maintaining an alternatives-to-abortion program. The program would support private organizations that “provide services that promote childbirth instead of abortion” for pregnant women. 
  • Rep. Vicky Steiner, R-Dickinson, is backing House Bill 1171, which would ban and criminalize “forced or coerced abortions.” 
  • Rep. Brandon Prichard, R-Bismarck, is sponsoring House Bill 1173, which would establish Jan. 22 of every year as “Right-To-Life Day” in North Dakota.
  • Rep. SuAnn Olson, R-Baldwin, has proposed House Bill 1176, which would create tax credits for residents who adopt children and for donors who support maternity homes and pregnancy centers.

Olson is sponsoring House Bill 1177, which would establish sales tax exemptions for baby diapers and children’s car seats. Both of Olson's bills are backed by the North Dakota Catholic Conference, which portrays them as "pro-life" proposals.

Jeremy Turley is a reporter for Forum News Service. Jack Dura is a reporter for The Bismarck Tribune.

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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