North Dakota Supreme Court Says “Trigger” Ban is Likely Unconstitutional

State Supreme Court keeps the total abortion ban blocked

03.16.23 – Today, the North Dakota Supreme Court ruled that the state’s total abortion ban violates the state constitution and should remain blocked. In its decision, the court found that abortion providers’ challenge to the “trigger” law is likely to succeed and that ban likely violates North Dakotans’ fundamental rights under the state constitution. The ban—which outlaws all abortions in the state—has been blocked since July 27. Today’s decision means that abortion will remain legal and people’s access to essential care will be protected in North Dakota while the case proceeds in a lower court.

In its majority opinion, the North Dakota Supreme Court wrote that the “North Dakota Constitution explicitly provides all citizens of North Dakota the right of enjoying and defending life and pursuing and obtaining safety. These rights implicitly include the right to obtain an abortion to preserve the woman’s life or health.” They add that this fundamental right to abortion is supported by the “history and traditions of North Dakota.” 

“Today, the court rightfully stopped one of the most extreme laws in the country from taking effect and depriving North Dakotans of their reproductive freedom,” said Nancy Northup, president and CEO of the Center for Reproductive Rights. “Under the state constitution, North Dakotans are promised the rights to life, liberty, safety, and happiness, all of which protect the right to abortion. In state after state, people have made clear that they want this right protected, yet state officials continue to ignore the will of their citizens. We will continue to work tirelessly to protect North Dakotans and the fundamental human rights of all people.”   

This case was filed by the Center for Reproductive Rights on behalf of abortion providers soon after Roe v. Wade was overturned. The lawsuit argues that the trigger ban is unconstitutional under the North Dakota Constitution. State court judge Bruce A. Romanick temporarily blocked the total abortion ban at the end of July and blocked the ban once again in August hours before it was set to take effect. It has remained blocked since that time.

North Dakota Attorney General Drew Wrigley asked the state’s high court to intervene after the lower court refused to reinstate the trigger ban. The North Dakota Supreme Court held a hearing over the order blocking the ban on November 29 and today rejected the state’s request to let the ban take effect. In its decision, the state’s high court said that lower court was correct in blocking the law and that abortion providers’ lawsuit is likely to succeed. 

“The court made the right decision and sided with the people of North Dakota today,” said Tammi Kromenaker, Director of Red River Women’s Clinic. “Those seeking abortion care know what’s best for themselves and their families and should be able to access such essential services if and when they need it. While I’m heartbroken that we have been forced to close our doors here in Fargo, we will continue to serve the region at our new clinic in Moorhead, Minnesota.”

Abortion has become illegal in twelve states since Roe v. Wade was overturned, leaving over 70 million people without access to abortion care. At least 66 clinics have been forced to cease abortion services.  

 Red River Women’s Clinic and its medical director Dr. Kathryn Eggleston are represented by the Center for Reproductive Rights, Weil, Gotshal & Manges LLP, and Sambor Goetz LLP