State high court hears North Dakota abortion law arguments

2013-12-11T17:00:00Z State high court hears North Dakota abortion law argumentsBy NICK SMITH | Bismarck Tribune Bismarck Tribune

The North Dakota Supreme Court heard oral arguments Wednesday over a 2011 abortion law that was ruled unconstitutional by a district court judge earlier this year.

Lawyers for the state, arguing in favor of the law which banned one of two drugs used in nonsurgical abortions, said the case must be interpreted by the intent of those who drafted the North Dakota Constitution. There was no right to an abortion in the state prior to the 1973 Roe vs. Wade decision, said the state solicitor general.

The law’s opponents argued that it would illegally restrict abortion rights. They countered that the state constitution is an evolving, not static, document and that the U.S. Constitution overrides the attempt at restricting the practice.

House Bill 1297 required abortion-inducing drugs to only be provided by a licensed physician in their presence. Under the law a physician providing the drugs also would have to enter into a contract with another physician who would respond to any medical emergency stemming from use of the drugs.

East Central District Judge Wickham Corwin signaled his intent in April to rule against the state and in favor of the state’s lone abortion clinic following a trial in Fargo. In July Corwin released his decision striking down the law.

Solicitor General Doug Bahr, arguing for the state, told the justices the abortion debate clearly has been ongoing in the public for decades.

“We are in a court of law,” Bahr said. “The district court completely ignored (the law).”

Bahr said in North Dakota abortion restrictions date back to territorial days in the 1870s and the law must be interpreted based on the intent of those who drafted the constitution in 1889.

“There is no constitutional right to an abortion (in North Dakota),” Bahr said.

He said this held true until the federal Roe vs. Wade decision that legalized the practice in the United States.

Justice Carol Kapsner asked Bahr whether or not the court is to ignore Article I, Section 23 of the state constitution. It says the state is a permanent part of the Union and the U.S. Constitution is the supreme law of the land.

Bahr reiterated the issue of intent. He also argued while the Supremacy Clause of the federal Constitution says a state can’t apply its laws to deny a person federal rights a state court doesn’t have to interpret its state constitution to protect the same rights in the federal Constitution.

Bahr also said opponents’ complaint cited only state constitutional law, not federal law. He said they had failed to prove that the state had ever provided the right to an abortion.

Bahr added that the 2011 law wasn’t a restriction on abortion, calling the law’s purpose as being merely “to regulate it.”

Autumn Katz, an attorney with the Center for Reproductive Rights, argued on behalf of the state’s lone abortion clinic, Red River Women’s Clinic of Fargo.

Chief Justice Gerald VandeWalle immediately confronted Katz over only referencing state constitutional law.

“You realize that if we don’t find a right to an abortion, you lose?” VandeWalle said.

Katz disagreed and stated that the court has a history of ruling in favor of an individual’s rights equal to or above that of the federal Constitution.

Katz said to not do so “would be unprecedented in this court’s history.”

VandeWalle questioned Katz again on the state constitution.

“Do you really think prior to Roe vs. Wade this state … recognized the right to an abortion?” VandeWalle said.

Katz argued that the state has ruled in the past with an evolving, not static, view of the constitution’s protections.

“I not disputing that there were laws on the books,” Katz said.

Katz added that the district court ruling was correct in stating that the law’s implementation by the state serves no legitimate purpose.

The court has taken the case under advisement and will issue its ruling at an undetermined future date.

Reach Nick Smith at 250-8255 or 223-8482 or at

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