On Thursday, however, the North Dakota Supreme Court
ruled that doctors and patients within its state lines would not face these awful choices: In a unanimous decision, the court declared that its state constitution protects abortion “where it is necessary to preserve her life or health,” blocking a ban that criminalized such procedures. It’s the first post-
Roe decision of its kind, but it’s likely not the last. As more Americans suffer the near-lethal consequences of modern abortion bans, conservative state courts will have to decide whether the government can value the life of a fetus over that of a patient.
The North Dakota Legislature enacted the state’s current ban in 2007, intending it to take effect if and when the Supreme Court overruled
Roe. But this summer, a state judge
halted the law before it could spring into action, preserving the legality of abortion within the state (whose
lone provider is in the process of moving to Minnesota). State officials pressed the state Supreme Court to lift the hold and had good reason to assume they’d prevail: The court is made up of five Republicans, four appointed by a GOP governor and one elected to his seat. (How conservative is the state’s judiciary? One justice was recused from the abortion case and replaced by another
Republican appointee from a lower court.)
But state officials encountered a problem when defending the ban: It has no true exception in cases in which the patient’s life is endangered. Instead, it allows defendants to raise life endangerment as an affirmative defense once they are
already being prosecuted. Unlike a genuine exception—which clarifies that a lifesaving abortion is not a crime at all—this approach puts the burden on defendants to prove to a jury that they acted to save a patient’s life. If they do not succeed, they face up to five years’ imprisonment. A similar law in Tennessee has
forced doctors to wait until a patient is
at risk of imminent death before terminating a pregnancy. Yet Tennessee’s GOP-controlled Legislature has
resisted replacing its current “affirmative defense” provision with a true exception for the life of the patient, and Tennessee Right to Life
staunchly opposes such a reform.
The North Dakota Supreme Court took a different path. In his majority opinion, Chief Justice Jon J. Jensen noted that the state constitution grants all residents the right “of enjoying and defending life and liberty” and “pursuing and obtaining safety and happiness.” These guarantees “implicitly include the right to obtain an abortion to preserve the woman’s life or health,” Jensen wrote. When the state classifies emergency abortions as de facto criminal unless proven otherwise, it deprives patients of “a right to enjoy and defend life and a right to pursue and obtain safety.” The chief justice backed up this conclusion by pointing out that North Dakota expressly permitted abortions to protect life or health in 1887, before it became a state, and preserved this exception in a series of statutes passed after its admission to the union in 1889. The right is thus “deeply rooted in North Dakota’s history and culture,” a key component of “ordered liberty before, during, and at the time of statehood.”
