North Dakota Medication Abortion Ban Remains Blocked

Judge denies summary judgment, but calls right to choose fundamental and protected under state constitution

(PRESS RELEASE) Writing that the North Dakota state constitution protects women’s right to choose to have an abortion—and that this right is fundamental — East Central District Court Judge Wickham Corwin today replaced an earlier temporary restraining order blocking enforcement of North Dakota’s ban on medication abortion with an injunction that will remain in effect until a lawsuit seeking to overturn the ban is resolved.

While Judge Corwin denied both state officials’ and the Center for Reproductive Rights’ motions for summary judgment in the case, his decision indicates a high likelihood of success by plaintiffs unless state officials can produce evidence demonstrating that medication abortion is unsafe.

More than 1.4 million women in the U.S. have chosen to safely end an early pregnancy through medication abortion since mifepristone was approved by the federal Food and Drug Administration in 2000, and reams of scientific data clearly show that medication is highly safe and effective.

The Center for Reproductive Rights filed a challenge in July 2011 to the unconstitutional law on behalf of Red River Women’s Clinic — North Dakota's only abortion clinic — arguing that the law denies women access to an alternative to surgical abortion that has been widely recognized as safe and effective by medical experts and organizations worldwide. The law has been temporarily blocked from enforcement since that time.

“North Dakota women already face too many barriers when seeking a safe, legal abortion. This ban on an effective and less invasive procedure is just another way to make it impossible for women to exercise their fundamental reproductive rights,” said Suzanne Novak, senior staff attorney at the Center for Reproductive Rights. “We are pleased the law will continue to be blocked, and remain optimistic that the court will find it to be wholly unconstitutional.”

The North Dakota law aims to completely ban medication abortion, despite the fact that for many women, including survivors of rape and domestic violence, it is medically preferable to a more invasive surgical procedure. About one of every five women seeking an abortion in North Dakota chooses medication abortion.

In today’s decision, Judge Corwin noted both the overwhelming evidence of the safety of medication abortion and the “insurmountable barriers” the state ban would put between women and their ability to obtain a safe and legal service and exercise a fundamental, constitutionally protected right.

“The available record clearly suggests that in most cases medical abortion is a safe and effective procedure for early abortions up to 63 days [gestation],” wrote Judge Corwin. “A careful review and balancing of the existing record… suggests that the state’s overall interest in the regulation of medical abortions is low and not compelling.”

Said Tammi Kromenaker, director of the Red River Women’s Clinic: “It is vital for the protection of women’s health and constitutional rights that this option remain available without the restrictions the state government seeks to impose. This law would take away the choice of medication abortion entirely and force a surgical procedure upon them even when it’s unnecessary or medically inadvisable.

Today’s decision is a very important victory for all North Dakota women.”

Currently, the Red River Women’s Clinic, dispenses the abortion pill using the customary evidence-based protocol which is proven more effective and less expensive.  It allows women to take a part of the combination of drugs at home, and requires only one mifepristone pill to be taken, as opposed to the FDA-approved method, which requires three pills. 

The Center filed the suit, MKB Management Corp d/b/a Red River Women’s Clinic, Kathryn Eggleston, M.D., v. Birch Burdick and Terry Dwelle, M.D., along with law firms Weil, Gotshal & Manges LLP and Turman & Lang Ltd.