North Dakota Constitution Likely Secures a Right to Life- and Health-Preserving Abortions
From today’s North Dakota Supreme Court decision in Wrigley v. Romanick, written by Chief Justice Jon Jensen, joined by Justices Daniel Crothers and Lisa Fair McEvers, and by District Judge Daniel Narum, sitting by designation (in place of Justice Douglas Bahr, who was recused):
[W]e conclude RRWC has a substantial likelihood in establishing there is a fundamental right for a woman to obtain an abortion in instances where it is necessary to preserve her life or health. We need go no further here to determine whether there are fundamental rights broader in scope.
“Our overriding objective is to give effect to the intent and purpose of the people adopting the constitutional statement.” To accomplish this we must construe the constitution in light of the contemporaneous history existing at and prior to the adoption of the constitutional provision.
North Dakota Constitution article I, section 1 was enacted in 1889 when North Dakota was admitted as a state to the Union. Section 1 provides, in part, “[a]ll individuals are by nature equally free and independent and have certain inalienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing and protecting property and reputation; pursuing and obtaining safety and happiness[.]” N.D. Const. art. I, § 1. 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.
North Dakota’s history and traditions support this conclusion. North Dakota has a long history of permitting women to obtain abortions to preserve their life or health. Prior to statehood, North Dakota, then part of the Dakota Territory, criminalized abortions but explicitly provided an abortion was not a criminal act if the treatment was done to preserve the life of the woman:
Every person who administers to any pregnant woman, or who prescribes for any such woman, or advises or procures any such woman to take any medicine, drug or substance, or uses or employs any instrument, or other means whatever, with intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life, is punishable by imprisonment in the territorial prison not exceeding three years, or in a county jail not exceeding one year.
… After statehood, North Dakota enacted a law which criminalized abortions but again explicitly provided an abortion would not be considered a criminal act if the treatment was done to preserve the life of the woman …. North Dakota’s legislature repeatedly reaffirmed the criminal prohibitions in substantially the same form and always with the same exception for abortions “necessary to preserve her life.” North Dakota did not criminalize life-preserving abortions until N.D.C.C. § 12.1-31-12 was enacted in 2007 and became eligible for enforcement in 2022.
Medical journals published shortly after statehood indicate it was common knowledge that an abortion could be performed to preserve the life or health of the woman.
There are not infrequently cases in which an abortion is imperative: the mentally unfit who might become deranged; the woman with a narrow brim or outlet because of which her life might be in danger and a Cesar[e]an section is the only relief; the woman who may bleed to death; the eclamptic; and those suffering from dangerous diseases. This class, fortunately, is small in number; and abortion is performed only after a deliberate and careful consultation in which the dangers of the abortion are weighed from every side.
Criminal Abortions, 34 Journal-Lancet 81, 82 (1914). Additionally, in the journal a doctor describes an abortion performed: “Mrs. T. first came under the writer’s care for acute septic abortion. The uterus were emptied, and after a rather continued run of temperature the patient made a symptomatic recovery.” North Dakota recognized and approved abortions performed to preserve the life or health of the woman.
The State asserts abortion cannot be included as a fundamental right, because the inherent rights reserved to the people under sections 1 and 12, such as the fundamental right of parents to parent their child, are distinguishable from abortion because abortion, unlike the right to parent one’s own child, does not have longstanding roots in American culture. This assertion is incorrect, as noted above, North Dakota has a longstanding history of allowing pregnant women to receive an abortion to preserve her life or health. The legislature enacted and reaffirmed laws which always provided an exception to preserve the life of the woman up and until 2007 when N.D.C.C. § 12.1-31-12 was enacted as a trigger law. Like the right to parent one’s own child, the right to receive a health or life-preserving abortion is deeply rooted in North Dakota’s history and culture….
Because we hold the North Dakota Constitution provides a fundamental right to receive an abortion to preserve a pregnant woman’s life or health, the constitutionality of N.D.C.C. § 12.1-31-12 must be analyzed under the strict scrutiny standard. A statute which restricts a fundamental right is subject to strict scrutiny standard of review which will only be justified if it furthers a compelling government interest and is narrowly tailored to serve that interest….
The State has a compelling interest in protecting women’s health and protecting unborn human life, as these interests are at least of the same importan
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