McFeely: Federal judge gives N.D. Legislature a beatdown

'Abortion reversal' law called ideological and unconstitutional by Republican-appointed judge

Protesters and patient escorts stand outside of North Dakota's only abortion provider, the Red River Women's Clinic in downtown Fargo, on Wednesday, May 15. David Samson / The Forum

U.S. District Judge Daniel Hovland's epic beatdown of the Republican-dominated North Dakota Legislature is worth a read, if only because it shows what happens when rabid ideology trumps constitutionality, science, ethics and common sense. It also outlines just how far ideologically-driven GOP lawmakers will go to get their way, and how little facts matter to them.

Hovland's ruling last week blocked House Bill 1336, a sketchy law passed earlier this year requiring physicians to inform patients that it may be possible to reverse a drug-induced abortion. The bill sailed through the Legislature and was signed into law by Republican Gov. Doug Burgum in March, despite protestations from abortion-rights supporters and physician groups that the law would force doctors to give their patients inaccurate information based on no scientific evidence.

Abortion foes wanted to mandate doctors had to tell their patients something conservatives wished to be true, but isn't. First Amendment be darned. Doctor-patient relationship be darned.

Imagine a law requiring doctors to tell cancer patients that closing their eyes, hopping on one foot and reciting the Lord's Prayer would reverse their condition. This law was little different.


Hovland, a George W. Bush appointee, saw through them in issuing a preliminary injunction to prevent North Dakota from enforcing the law. His 24-page ruling was an evisceration of ideologues in the state legislature who want to impose their supposed morals on the once-sacred doctor-patient relationship, while shoving aside sound science.

Hovland points out that even the state's star witnesses, Drs. Richard Vetter and Jerry Obritsch, couldn't say so-called "abortion reversal" was a legitimate medical procedure.

Among the gems in Hovland's ruling:

"H.B. 1336 is likely unconstitutional because it requires physicians to disclose information which is either untruthful, misleading, and/or irrelevant to the patient's decision to have an abortion."

"Rather than focus on relevant medical information designed to assist a woman in making a free choice, H.B. 1336 expresses ideological beliefs essentially designed to make it more difficult for women to choose an abortion."

"The law also clearly interferes with the doctor-patient relationship; forces the attending physician to convey to his/her patient a state-mandated message that is devoid of credible scientific evidence; misinforms and misleads the patient ... and is arguably unethical. A law which mandates that physicians become mouthpieces for a false, misleading, and controversial 'abortion reversal' message would not survive any level of constitutional scrutiny."

"The State contends there is an ongoing medical debate about whether a chemical abortion can be reversed. However, the record reveals no real, serious debate within the medical profession at the current time."


"State legislatures should not be mandating unproven medical treatments, or requiring physicians to provide patients with misleading and inaccurate information."

"H.B. 1336 forces physicians to give their patients unsound and unproven medical advice ...."

There is much more.

Kudos to Hovland for telling it like it is — North Dakota's legislators have devolved from making laws to mandating ideology. The state should quit the fight on H.B. 1336. This being North Dakota, it's unlikely it will.

Mike McFeely is a columnist for The Forum of Fargo-Moorhead. He began working for The Forum in the 1980s while he was a student studying journalism at Minnesota State University Moorhead. He's been with The Forum full time since 1990, minus a six-year hiatus when he hosted a local radio talk-show.
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