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Port: North Dakota's courts have already rejected the idea of a right to abortion in the state Constitution

A 2014 opinion for the North Dakota Supreme Court failed to find a right to an abortion in the state Constitution.

Wide view of the abortion clinic in Fargo with protesters and clinic escorts out front
Anti-abortion protesters and patient escorts stand in front of the Red River Women's Clinic on June 29, 2022, in downtown Fargo.
C.S. Hagen/The Forum
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MINOT, N.D. — News broke yesterday that North Dakota's only abortion clinic is filing suit to challenge the state's ban on abortions which was triggered by the U.S. Supreme Court overturning Roe v. Wade.

The argument made in the suit is that there is a right to an abortion in the state Constitution despite the fact that, much like the U.S. Constitution, no word of our state document was ever written with the intent to create such a right.

What the Red River Women's Clinic and its lawyers are hoping for is to convince some judges to create law where the state Legislature, and the people of North Dakota, have not.

But the North Dakota Supreme Court has already ruled on the question of a right to an abortion in the state Constitution, and they didn't find one.

Or, at least, there wasn't a sufficient majority on the court to find one.

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Interestingly, the lawsuit just filed yesterday doesn't mention this precedent at all.

The case is MKB Management Corp., et al. v. Burdick, et al. (MKB Management Corp. does business as the Red River Women's Clinic), and it pertained to 2011 bill from the state Legislature that aimed to regulate medical abortions. The plaintiffs argued that this violated a woman's right to an abortion under the state and federal constitutions.

Ultimately, the state court did not strike down the law, though how the justices actually voted is more than a little complicated.

In the 2014 opinion, Justice Carol Kapsner and Surrogate Judge Mary Maring (who presided over this case because Justice Lisa McEvers hadn't been seated in time for the arguments in the case) found the law to be unconstitutional based on the idea of a right to an abortion in the state Constitution.

Chief Justice Gerald VandeWalle and Justice Dale Sandstrom found that it was constitutional.

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Justice Daniel Crothers found the question of constitutionality at the state level to be irrelevant because the federal courts, in cases beginning with Roe v. Wade, had already found a right to an abortion in the U.S. Constitution.

Kapsner, Crothers and Maring found that the law was unconstitutional under the federal constitution. VandeWalle found that it was constitutional. Sandstrom argued that the question of federal constitutionality was not properly before the court.

For those of you keeping score at home, that's just two justices who found a right to an abortion in the state Constitution, and three who found it in the federal constitution based on federal court precedent (Roe, etc.).

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The state Constitution requires four justices to find a law unconstitutional, so the court reversed a district court ruling enjoining the 2011 law.

This opinion matters for yesterday's lawsuit for two reasons.

First, the plaintiffs in that case (who were the plaintiffs in the previous case as well) want the state's justices to find a right to an abortion that they didn't find in 2014.

The state Supreme Court can certainly overturn its own precedent — that's what the federal courts did with Roe — but that seems unlikely. It would take four of the five justices to do it.

Second, if you read the opinion, much of the argument about the right to an abortion existing in the state Constitution is based on the Roe and the Casey v. Planned Parenthood precedents which the U.S. Supreme Court has just overturned. "Where federal constitutional law speaks, it controls," Kapsner and Maring wrote in their opinion which held that there was a right to an abortion in the state Constitution as well.

Federal constitutional law has changed, based on the Supreme Court's recent ruling on Dobbs.

Even given that most of the justices on the court today weren't around for this opinion back in 2011 - again only VandeWalle and Crothers remain - whatever slight chance the Red River Women's Clinic may have had in challenging an abortion ban under the state constitution is essentially gone now that the federal precedents that were informing so much of the state's jurisprudence on abortion matters is no more.

As I argued yesterday , the advocates for abortion access are going to have to engage the democratic process, and legalize abortion as an intentional act of the people and/or their representatives.

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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