North Dakota Judge Condemns Abortion: People Have the “Natural Right of Enjoying and Defending Life”

A pro-life law will continue to stand in North Dakota after the state’s highest court failed to strike it down. In April of 2023, then-governor of North Dakota Doug Burgum, now secretary of the Interior, signed into law a provision passed by the state legislature banning abortions in nearly all circumstances.

The law classified abortion as a Class C felony, punishable by up to five years in prison and fines of up to $10,000, except in cases of rape and incest prior to six weeks’ gestation or in cases where an abortion was “deemed necessary based on reasonable medical judgment which was intended to prevent the death or a serious health risk” to the mother. The Red River Women’s Clinic of Fargo, an abortion facility, sued to block the law in July of that year, and Judge Bruce Romanick of the Burleigh County District Court ruled that the law was unconstitutional.

In a decision handed down Friday, three of the North Dakota Supreme Court’s five justices agreed with Romanick and declared the pro-life law unconstitutional. Justices Daniel Crothers, Lisa Fair McEvers, and District Judge Daniel Narum, filling in for Justice Douglas Bahr, who recused himself, all determined that the pro-life provision is unconstitutional, while Chief Justice Jon Jensen and Justice Jerod Tufte ruled that the law is constitutional. In order to strike down a law as unconstitutional in North Dakota, however, at least four of the five justices must agree that the law violates the Constitution. Since only three reached that conclusion in Friday’s ruling, the pro-life law stands. “The effect of the separate opinions in this case is that [the pro-life law] is not declared unconstitutional by a sufficient majority and that the district court judgment declaring [the law] unconstitutional and void is reversed,” the court’s ruling clarified.

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“The district court did not err when it decided the law, which criminalizes abortion with exceptions, is unconstitutionally vague,” Crothers wrote on behalf of the court’s majority. “The vagueness in the law relates to when an abortion can be performed to preserve the life and health of the mother. After striking this invalid provision, the remaining portions of the law would be inoperable. Because the unconstitutional part of the law cannot be severed from the rest, [the pro-life law] would be invalid in its entirety.”

The abortion advocates who challenged the law claimed that it was unconstitutionally vague, a claim with which the court’s majority agreed, violated the state constitution’s guarantee of due process, which prohibits the government from depriving any person “of life, liberty, or property without due process of law,” and violated the state constitution’s guaranteeing that “[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…” They argued, according to Crothers, that “this constitutional provision guarantees the right to an abortion under various circumstances, including contexts relating to mental health conditions and when a pregnancy will not create sustainable life after birth.”

“We agree with the district court that, in the context of medical care the Plaintiff physicians perform with the intent of protecting the lives and health of their patients, [the pro-life law], does not give fair warning and allows for discriminatory and arbitrary enforcement,” Crothers wrote. “As we have explained, the law’s use of an objective reasonableness standard criminalizes a physician’s conduct regardless of whether he or she acts in good faith,” he continued. “In the face of this uncertainty, the law imposes harsh felony penalties for non-compliance. These harsh penalties demand a high degree of specificity, which the State has not provided.”

In his dissenting opinion, Tufte argued that the majority’s classification of the law as “unconstitutionally vague” is invalid, largely because predicated upon hypothetical scenarios. “[T]he majority opinion extends our precedent to allow a pre-enforcement facial challenge in which the challengers present only hypothetical future conduct as the basis for the testifying experts’ disagreement about the legal application of the statute,” he wrote. “The parties’ presentation of witnesses having expertise in medicine or history who disagree about lawyer-crafted hypotheticals is not a sufficient basis for a court to declare a statute unconstitutionally vague.”

“The natural rights ‘of enjoying and defending life and liberty’ and ‘pursuing and obtaining safety and happiness’ by their own terms predate the constitution and limit legislation from infringing those rights as they were understood by the people of this state when they voted to adopt the constitution,” Tufte argued. “Careful application of our longstanding framework for review of these issues yields the conclusion that [the pro-life law] is not in conflict with the natural rights protected by Section 1, nor is it unconstitutionally vague in violation of Section 12,” he continued. Therefore, the strict “vagueness” test applied by the court’s majority was unwarranted, concluded.

“Because the Plaintiffs have presented only hypothetical scenarios and have not demonstrated the statute is vague as applied to any actual conduct, their facial challenge fails to satisfy our established precedent,” Tufte wrote. “The serious health risk exception does not present a clear answer to every imaginable situation. No statute can. This statute provides minimum guidelines to avoid arbitrary and discriminatory enforcement, and also provides fair warning to a reasonable person about what conduct is prohibited.”

FRC’s Joy Stockbauer praised the outcome. “This decision is excellent news for the pro-life movement, both in North Dakota and in other states where duly enacted pro-life laws protecting unborn children are being held up in the courts. Unfortunately,” she told The Washington Stand, “we have watched for decades as activist judges have discarded the right to life and implemented their own pro-abortion agendas. Given that the majority of judges in North Dakota are elected rather than appointed, this case should remind pro-lifers of the significance of participating in local elections. There are no unimportant elections when the lives of unborn children and the well-being of their mothers are on the line.”

LifeNews Note: S.A. McCarthy serves as a news writer at The Washington Stand.