MKB Management Corp d/b/a Red River Women’s Clinic, Kathryn Eggleston, M.D., v. Birch Burdick and Terry Dwelle, M.D.

07.15.11 -  This case challenges provisions of North Dakota House Bill 1297, passed during the 2011 legislative session, which would effectively ban all medication abortions in the state by requiring compliance with conditions for the provision of "abortion-inducing drugs" that are impossible to meet. The law was set to take effect on August 1, 2011, but the court has blocked its enforcement since July 2011.

Plaintiff(s): Red River Women's Clinic and Dr. Kathryn Eggleston

Center Attorney(s): Suzanne Novak, Janet Crepps and David Brown

Co-Counsel/Cooperating Attorneys: Joseph Turman, Turman & Lang, Ltd.; Jared Bobrow, Carmen Bremer, and Amy Reed, Weil, Gotshal & Manges LLP

Summary: Red River Women's Clinic (RRWC) is the only abortion provider in North Dakota, and provides a range of reproductive health services to the women of the state, and for women who travel from South Dakota and Minnesota. Women seeking abortions through nine weeks of pregnancy currently may choose between surgical abortion or medication abortion. Medication abortion, which became widely available in the United States in 2000, represents an advance in medical care for women seeking abortions. Approximately 20% of RRWC's patients choose medication abortion.

RRWC provides medication abortions using a combination of two drugs - Mifeprex and misoprostol. The Clinic follows a protocol that has been tested and shown to be safe and effective.

During the 2011 legislative session, the North Dakota Legislature passed House Bill 1297, which was signed by Governor Dalrymple and was scheduled to take effect on August 1. On July 18, 2011, the Center filed a challenge, on behalf of RRWC, to several provisions of HB 1297 that limit the provision of medication abortions on the grounds that the act violates the rights of RRWC, its physicians, staff and patients, because: 1) it bans all medication abortions; 2) it places unconstitutional burdens on women seeking medication abortions; 3) it is impermissibly vague; 4) it constitutes an improper delegation of legislative authority; 5) it constitutes an impermissible special law; 6) it violates the equal privileges and immunities rights of women seeking, and physicians providing, medication abortions; and 7) it violates the right to bodily integrity of women seeking medication abortions.

The Center asked a state court to block enforcement of HB 1297 while the court considered the serious constitutional violations caused by the act. The court agreed to temporarily restrain enforcement of the bill while CRR sought a temporary injunction, and the parties cross moved for summary judgment during the Fall of 2011. On February 16, 2012, the court denied the cross motions, but granted Plaintiffs' motion for a temporary injunction. In its opinion, the Court concluded that the North Dakota state constitution protects the right to choose an abortion as a fundamental right, and that Plaintiffs were likely to succeed on their claim that the statute violates this right. The case will now continue towards trial on limited factual issues. The temporary injunction will remain in effect until the court issues a final ruling on the constitutionality of the law, which means that women in North Dakota can continue to receive medication abortions.