North Dakota judge will decide whether to throw out a challenge to the state’s abortion ban

BISMARCK, ND — Attorneys argued Tuesday over whether a North Dakota judge should dismiss a lawsuit challenging the state’s abortion ban. The state argued that the plaintiffs’ case is based on hypotheticals, and the plaintiffs argued that important issues remain to be resolved at a scheduled trial.

U.S. District Judge Bruce Romanick said he will rule as soon as possible, but he also asked the plaintiffs’ attorney what difference he would make during the August trial.

The Red River Women’s Clinic, which moved from Fargo to neighboring Moorhead, Minnesota, the lawsuit filed challenge the state’s now-repealed tractor ban, shortly after the fall of Roe v. Wade in 2022. The clinic was the only abortion clinic in North Dakota. In 2023, The Republican-controlled state of North Dakota Legislative power revised the state’s abortion laws in the midst of the lawsuitShortly thereafter the plaintiffs came an amended complaint filedaccompanied by physicians in obstetrics, gynecology and maternal-fetal medicine.

In North Dakota, abortion is illegal as a felony, with exceptions to prevent the death of the mother or a “serious risk to her health,” and in cases of rape or incest up to six weeks of pregnancy.

The plaintiffs argue that the law violates the state constitution because the law is unconstitutionally vague on exceptions for doctors and the health care exception is too narrow.

The state wants the complaint dismissed. Special Assistant Attorney General Dan Gaustad said the plaintiffs want the law declared unconstitutional on hypothetical grounds, that the clinic now in Minnesota has no legal standing and that a lawsuit would not help the judge.

“You’re not going to get any more information than what you have now. It’s a legal issue,” Gaustad told the judge.

The plaintiffs want the trial to continue.

Meetra Mehdizadeh, a staff attorney at the Center for Reproductive Rights, said the trial would resolve factual disputes over how the law would apply to various pregnancy complications, “the extent to which the ban impedes the provision of standard medical care,” and the need for exceptions for mental health conditions and pregnancies with a fatal fetal diagnosis.

When the judge asked her about the trial, she said that by hearing the experts’ testimony directly, rather than reading their statements, he would have the opportunity to test their credibility and ask questions of his own to clarify the issue.

In an interview, she said that laws like North Dakota’s create confusion and hinder doctors when patients arrive in an emergency.

“At the national level, we see that doctors feel they have to delay, either to do more testing, or to consult legal teams, or to wait for patients to get sicker, and to know if the patient qualifies for the ban,” Mehdizadeh said.

In January the judge denied the request of plaintiffs to temporarily block part of the law so that doctors in health-saving situations can perform abortions without the risk of prosecution.

A recent state report shows that the number of abortions in North Dakota last year dropped to a non-reportable levelmeaning fewer than six abortions were performed in 2023. The state reported 840 abortions in 2021, the year before the U.S. Supreme Court ruled to overturn Roe v. Wade.

The court’s ruling allowed states to pass abortion bans by ending the nationwide right to abortion.

Most Republican-controlled states now have bans or restrictions. North Dakota is one of 14 states that enforces a ban on abortion at all stages of pregnancy. Meanwhile, most Democratic-controlled states have taken measures to protect abortion access.

The problem is big in this year’s elections: Abortion related voting measures will be put to voters in at least six states. Since 2022, voters in all seven states where similar questions have appeared have sided with abortion rights advocates.

___

Geoff Mulvihill, Associated Press editor in Cherry Hill, New Jersey, contributed to this story.