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Attorney general seeks $400,000 to defend abortion bills

Just as the state prepares for trial on a 21-month-old challenge of one abortion law, legislators are discussing a $400,000 appropriation in anticipation of new legal challenges.

The budget for the attorney general’s office has been amended to include $400,000 for an anticipated legal challenge of abortion laws passed earlier this session.

Meanwhile, a legal challenge of last session’s House Bill 1297 is scheduled to go to trial April 16 in Cass County.

Attorney General Wayne Stenehjem said the appropriation would ensure the state’s ability to defend legislative decisions if they are challenged, which has been threatened.

Legislators have approved three abortion bills that the governor has signed, and a fourth is in the legislative pipeline.

That means the state could be defending challenges to as many as four different laws, Stenehjem said.

“These are complicated, complex lawsuits, so they take a lot of time,” he said.

“They are heavily dependent on expert medical witnesses, and we would need to make sure those are available and we have the funding to pay for them.”

Sen. Ralph Kilzer, chairman of the appropriations subcommittee that handles Stenehjem’s budget, said it would be passed out Tuesday and probably taken up by the full Appropriations Committee Wednesday.

Immediately following passage of three abortion bills, women’s rights groups said they would prepare legal challenges.

The three measures ban abortions under different circumstances. One outlaws abortion at any time after a fetal heartbeat is detected, one prevents abortions due to fetal genetic abnormalities or for gender selection, and the third requires all doctors performing abortions to have admitting privileges in a state hospital.

The bill still pending would ask state voters whether they want to amend the constitution to preclude any abortion.

Stenehjem said there are too many uncertainties to plan for any challenges.

“We have a constitutional duty to support and defend enactments of the Legislature,” he said, “but it’s hard to know what’s going to happen until you get a summons and complaint.”

The first uncertainty, he said, is the possibility that the laws will be referred to a vote of the people.

A Grand Forks group is preparing a referral and says it will begin gathering petition signatures once the measure is approved by the secretary of state.

If that happens, the laws are automatically suspended through the June 2014 election.

If voters reject the laws, Stenehjem said, there will be no new laws to challenge.

If voters uphold the decisions of the Legislature, “I assume there will be a lawsuit.”

Defending multiple laws would require additional help, Stenehjem said.

“We are of the opinion that we could perhaps handle one.”

If there are more, he would have to hire more staff or contract outside counsel.

“Each option has pluses and minuses,” he said, though if he hires outside counsel he would prefer to hire someone from within the state with whom he is familiar.

There have been suggestions that attorneys representing national anti-abortion groups would provide free legal counsel to the state, but Stenehjem said he hasn’t been contacted by any of them.

District Judge Wickham Corwin has scheduled a trial to begin April 16 in a case in which the Red River Women’s Clinic of Fargo has challenged a 2011 law banning medication abortion.

That suit was filed July 18, 2011, just a few months after it was signed into law, and has been working its way through the court system ever since.

The suit claims the law would eliminate a safe and effective alternative to surgical abortion, violating the right of North Dakota women to end a pregnancy.

Reach Steve Andrist at 701-223-8482 or


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