MKB Management Corp et al. v. Burdick et al.

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 District Court has blocked its enforcement since July 2011 and struck down the challenged provisions as unconstitutional after a trial in April 2013. The case is now pending final judgment from the North Dakota Supreme Court, where it was recently heard on appeal.

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

Center Attorney(s): Autumn Katz, Janet Crepps, David Brown and Jennifer Sokoler

Co-Counsel/Cooperating Attorneys: Joseph Turman, Turman & Lang, Ltd.; Jared Bobrow and Carmen Bremer, 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.

During the 2011 legislative session, the North Dakota Legislature passed House Bill 1297, which would have imposed onerous restrictions on the provision of medication abortion and required RRWC to enter into a medically unnecessary written backup agreement to handle emergencies at a local hospital. On July 18, 2011, the Center filed a challenge, on behalf of RRWC, to several provisions of HB 1297 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, and the court agreed to enjoin enforcement of the bill while CRR's lawsuit was pending. At trial, Plaintiffs presented evidence showing that the protocol RRWC follows when providing medication abortions has been tested and shown to be safe and effective. Plaintiffs’ evidence further showed that RRWC’s practices are consistent with the standard of care, and that allowing HB 1297’s restrictions to take effect would have been harmful to women’s health. At the conclusion of a 3-day trial, the District Court announced that the North Dakota state constitution protects a woman's right to choose an abortion as a fundamental right, and that the statute violates this right. The District Court further stated that any concerns about the safety of medication abortion had either been “exaggerated or contrived” and that the unconstitutional restrictions actually “stand in the way of women’s health.”

After the District Court published its written decision on HB 1297 in mid-July 2013, finding the challenged provisions unconstitutional and determining that the North Dakota Constitution protects a woman’s right to choose to have an abortion as fundamental, the State appealed the decision to the North Dakota Supreme Court. With amicus briefs from the North Dakota Medical Association and the North Dakota Women’s Network and Council on Abused Women’s Services, oral argument was held on December 11, 2013. A final decision on HB 1297 is expected sometime this spring.

A supplemental complaint regarding SB 2305’s requirement of hospital admitting privileges was added to this case in June 2013. That case has since settled and more information can be found here.

The Center