While they continue a lawsuit challenging the ban on constitutional grounds, attorneys for North Dakota’s only abortion clinic requested a court on Friday to postpone a trigger legislation that was scheduled to outlaw abortions beginning next week.
On August 26, the ban on abortions is scheduled to take effect. A preliminary injunction is being requested by the Red River Women’s Clinic in Fargo as part of a lawsuit alleging that the prohibition is unconstitutional under North Dakota law.
Bruce Romanick, the district judge for Burleigh County, promised to rule on the request by the end of the next week. He remained silent on the lawsuit’s future course of action.
Last month, Romanick suspended the trigger ban after deciding that Attorney General Drew Wrigley had set the closing date of July 28 too early. The Fargo clinic is attempting to overturn the restriction, but the court granted a temporary restraining order that effectively allowed it time to move to a new site in adjacent Moorhead, Minnesota, where abortion is still permitted.
For the last two weeks, the clinic has been providing services in the new facility.
In its case, the clinic claims that the state constitution’s protections of the rights to life, liberty, happiness, and security really ensure the right to an abortion. According to Lauren Bernstein, the clinic’s attorney, the prohibition would not only be against the law but also end 50 years of abortion availability in the state.
In the course of the 45-minute session, Bernstein said that “the stakes truly could not be much greater.”
There is no basic right to abortion in the state constitution, “either explicit or inferred,” according to Matthew Sagsveen, a state representative, who spoke in front of a nearly empty Bismarck courtroom.
The North Dakota Legislature established the trigger legislation in 2007 to go into effect if the U.S. Supreme Court ever reversed its 1973 decision ensuring universal access to abortion. In June, the top court did this.
With the exception of situations involving rape, incest, and the mother’s life, all of which would need to be proved in court, the trigger ban would enforce legislation that would make abortion illegal in the state. A doctor who performs an abortion would be charged with a criminal otherwise.
State courts have previously debated whether the right to an abortion is protected by North Dakota’s constitution. A court in Cass County declared a 2011 statute intended to control medication abortions unlawful, stating that it effectively outlawed the method and unconstitutionally curtailed abortion rights.
The matter was heard by the state Supreme Court, where two justices declared in 2014 that the North Dakota Constitution does not guarantee the right to an abortion, two judges that it does, and one justice that it was not for them to determine. The lower court’s judgment was overturned because it takes four justices to deem a legislation unconstitutional.
Steve Morrison, a professor at the University of North Dakota and an authority on abortion law, expressed his skepticism over the high court’s ability to read the right to abortion into the state constitution prior to Romanick’s decision.
In the weeks after Roe’s overturn, a GoFundMe campaign created to aid in financing the Red River clinic’s relocation garnered $1 million.