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Abortion remains legal for now in North Dakota with state Supreme Court decision [1]
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Date: 2023-03-16
“After review of North Dakota’s history and traditions, and the plain language of article I, section 1 of the North Dakota Constitution, it is clear the citizens of North Dakota have a right to enjoy and defend life and a right to pursue and obtain safety, which necessarily includes a pregnant woman has a fundamental right to obtain an abortion to preserve her life or her health,” Jensen wrote. “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’s pending abortion ban “unnecessarily restricts a woman’s access to an abortion to preserve her life or health.” This decision, however, doesn’t throw out the state’s law. It just stops it from going into force now, before litigation on the case is completed. But it’s an indication of where the court might be heading on that.
The law, Jensen wrote, “criminalizes abortions performed even if the abortion is to preserve the life or health of the woman.” The remedy for the physician is in court, where they would have to “prove by a preponderance of the evidence the abortion was necessary to save the life of the woman.” That means endangering the life of the mother—potentially resulting in life-altering health outcomes—in order to for the doctor to decide whether or not they would have enough evidence in court for an acquittal. “This is not narrowly tailored to achieve the State’s interests in women’s health and protecting unborn human life,” Jensens said.
“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, which filed the case on behalf of Red River Women’s Clinic.
“Under the state constitution, North Dakotans are promised the rights to life, liberty, safety, and happiness, all of which protect the right to abortion,” Northrup continued. “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.”
The Red River Women’s Clinic left the state last summer in anticipation of the ban, moving operations just across the border to Minnesota, where abortion remains legal. The clinic’s owner, however, is giving up on the lawsuit to overturn the ban.
“The court made the right decision and sided with the people of North Dakota today,” Clinic Director Tammi Kromenaker said in a statement. “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.”
North Dakota Attorney General Drew Wrigley, who appealed the lower court’s injunction on the ban to the state Supreme Court, has yet to provide comment on the decision. Presumably, the legislature is going to have to get to work on rewriting that ban.
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https://www.dailykos.com/stories/2023/3/16/2158620/-Abortion-remains-legal-for-now-in-North-Dakota-with-state-Supreme-Court-decision
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