BISMARCK, N.D. — A state judge struck down North Dakota's ban on abortion Thursday, saying that the state constitution creates a fundamental right to access abortion before a fetus is viable.
In his ruling, state District Judge Bruce Romanick also said the law violates the state constitution because it is too vague.
Under the judge's order, abortion would be legal in North Dakota, but the state currently has no clinics performing them, and the Republican-dominated state government would be expected to appeal the ruling.
Romanick was ruling on a request from the state to dismiss a 2022 lawsuit filed against the ban by what at the time was the sole abortion clinic in North Dakota. The clinic has since moved across the border to Minnesota, and the state argued that a trial wouldn't make a difference. The judge had canceled a trial set for August.
Romanick cited how North Dakota's Constitution guarantees “inalienable rights,” including “life and liberty.”
“The abortion statutes at issue in this case infringes on a woman’s fundamental right to procreative autonomy, and are not narrowly tailored to promote women's health or to protect unborn human life,” Romanick wrote in his 24-page order. “The law as currently drafted takes away a woman’s liberty and her right to pursue and obtain safety and happiness.”
The offices of Republican Gov. Doug Burgum and GOP state Attorney General Drew Wrigley did not immediately respond to requests for comment.
Meetra Mehdizadeh, staff attorney at the Center for Reproductive Rights, which supports abortion rights and challenges state bans, said the ruling "means it is now much safer to be pregnant in North Dakota.” But she said the “damage” from the ban cannot be undone overnight because clinics can take years to open.
The Red River Women’s Clinic, which had been North Dakota’s sole abortion provider, moved from Fargo to neighboring Moorhead, Minnesota. The clinic filed the original lawsuit in 2022 against the state’s now-repealed trigger ban, weeks after the fall of Roe v. Wade.
“There are no abortion clinics left in North Dakota,” Mehdizadeh said in a statement. “That means most people seeking an abortion still won’t be able to get one, even though it is legal.”
Romanick was first elected a district judge in heavily GOP North Dakota in 2000 and has been reelected every six years since, most recently in 2018. Before he was a judge, he was an assistant state's attorney in Burleigh County, home to the state capital of Bismarck.
The judge acknowledged in his ruling that in the past, the North Dakota courts had previously relied on federal court precedents on abortion, but said those state precedents had been “upended” by the U.S. Supreme Court’s 2022 decision to overturn Roe v. Wade and allowed states to ban abortion under the U.S. Constitution.
Romanick said he’d been left with “relatively no idea” how the North Dakota Supreme Court would address the issue, and so his ruling was his “best effort” to “apply the law as written to the issue presented” while protecting the fundamental rights of the state’s residents.
“Pregnant women in North Dakota have a fundamental right to choose abortion before viability exists under the enumerated and unenumerated interests provided by the North Dakota Constitution,” the judge wrote.
In many respects, Romanick's order mirrors one from the Kansas Supreme Court in 2019, declaring access to abortion a fundamental right under similar provisions in that state's constitution, though the Kansas court did not limit its ruling to before a fetus is viable. Voters in Kansas affirmed that position in an August 2022 statewide vote.
Romanick concluded that the law is too vague because it does not set clear enough standards for determining whether exceptions apply, leaving doctors open to being prosecuted because others disagree with their judgments.
In 2023, North Dakota’s Republican-controlled Legislature revised the state’s abortion laws, making abortion legal in pregnancies caused by rape or incest, but only in the first six weeks of pregnancy. Under the revised law, abortion was allowed later in pregnancy only in specific medical emergencies.
Soon after that, the clinic, joined by several doctors in obstetrics, gynecology and maternal-fetal medicine, filed an amended complaint. The plaintiffs alleged the abortion ban violates the state constitution because it is unconstitutionally vague about its exceptions for doctors, and that its health exception is too narrow.
Romanick acknowledged that when North Dakota became a state in 1889, its founders likely would not have recognized abortion access as a right under the state constitution, but added, “women were not treated as full and equal citizens.”
The judge said that in examining history and tradition, he hoped that people would learn that “there was a time when we got it wrong and when women did not have a voice.”
“This does not need to continue for all time, and the sentiments of the past, alone, need not rule the present for all time,” he wrote.
