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Port: North Dakota's abortion ban needs clarification and reconciliation

When the courts improperly read into the U.S. Constitution a right to an abortion that was never really there, they allowed our activists and politicians to entertain stark and unnuanced views on abortion because, thanks to the Roe precedent, they never expected to have to implement those views as law. But now that we have to, we're obliged to ensure that these laws are implemented fairly and without unintended consequences.

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Ken Koehler, West Fargo, holds a sign in front of the Red River Women’s Clinic as volunteers Paula Haeder, right, and Sara Rundlett wait to escort women seeking an abortion Wednesday, July 22, 2015, in Fargo.
Michael Vosburg / Forum Photo Editor
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MINOT, N.D. — The Supreme Court has ruled, and now it's up to the states to make and enforce abortion policy.

Or Congress, I suppose.

President Joe Biden is calling on Democrats to set aside the Senate filibuster and pass a law codifying legal abortion at the federal level, though that's a bad idea.

It's not clear to me that Congress has the authority to override state-level abortion bans. Such a law would likely be struck down by the courts. Also, do we want to further inflame this issue with a national law passed with the slimmest of majorities in the Senate, where Democrats hold only a technical majority?

Congress should leave this matter to the states.

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But, let's set that aside. We'll cross that bridge when we come to it.

For the time being, states like North Dakota are in charge of determining the status of abortion within their borders, and our state has already done that. We have multiple bills triggered by the Supeme Court decision, not to mention other restrictions on abortion that were previously enjoined by the courts based on the Roe precedent ( Attorney General Drew Wrigley discussed them with me on Monday ), but the only one that really matters, because its scope makes the other restrictions and bans redundant, is a 2007 law passed by a strong bipartisan majority which makes most abortions a class C felony.

The exceptions are when an abortion is needed to "prevent the death of the pregnant female," or to "terminate a pregnancy that resulted from gross sexual imposition, sexual imposition, sexual abuse of a ward, or incest."

The law also specifically exempts the pregnant mother from any sort of prosecution and allows for abortions in instances of multiple pregnancies when it may increase the chances of live birth of at least some of the babies.

When these laws passed, there was little hope that they'd actually be enforced as law, because, let's be honest, few thought that the Roe precedent would ever be overturned.

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But that's happened, as unlikely as it seemed even just a couple of years ago, and we have to consider how this law is going to be enforced. Even though North Dakota's only abortion clinic is riding a flood of donations across the Red River to Minnesota ahead of the late July implementation of this law, we can't ignore that this policy does allow for some abortions.

For instance, how do we determine when the exception for pregnancies resulting from sexual assault is properly invoked? Can a pregnant woman just say "I was raped," and get a legal abortion? Does a police report have to be filed? A perpetrator named?

Does a rape charge have to be adjudicated in a court to establish guilt? That process can take months, or years depending on the circumstances, and can't be accelerated to match the biological timeline of pregnancy while simultaneously protecting the rights of the accused.

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The law also allows doctors to exercise "professional judgment" and perform an abortion when it's necessary to protect the life of the mother. But how can we give our state's physicians the confidence to exercise that judgment?

Are lawyers going to be reviewing medical files, essentially looking over the shoulders of doctors, and second-guessing their decisions? Again, if this sort of exception is going to be on the books, we have to think about how we're going to enforce it justly.

When the courts improperly read into the U.S. Constitution a right to an abortion that was never really there, that was never intended to be there by anyone who ever drafted any amendment to that document, they allowed our activists and politicians to entertain stark and un-nuanced views on abortion because, thanks to the Roe precedent, they never expected to have to implement those views as law.

But now that we have to, we're obliged to ensure that these laws are implemented fairly and without unintended consequences.

Our first step is to remove the redundancies of the mish-mash of laws we passed back when Roe was still in place.

Our second is to ensure that the laws we keep are fair and just, and are aimed not just at protecting life in the womb, but in protecting the whole lives of moms, dads, and children.

Opinion by Rob Port
Rob Port is a news reporter, columnist, and podcast host for the Forum News Service. He has an extensive background in investigations and public records. He has covered political events in North Dakota and the upper Midwest for two decades. Reach him at rport@forumcomm.com. Click here to subscribe to his Plain Talk podcast.
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