Restrictions

In September 2024, a trial court found that the North Dakota’s total abortion ban is both unconstitutionally void for vagueness and violates pregnant people’s fundamental right to access abortion care.^[1]Access Indep. Health Serv. Inc v. Wrigley, No. 08-2022-CV-1608 (N.D. S. Cent. Dist. Ct. Sept. 12, 2024) (finding the ban unconstitutional). North Dakota had previously enforced a total ban on abortion, enacted in 2023, which prohibited abortion at all stages of pregnancy, except in the case of death or serious health risk.^[2]N.D. Cent. Code § 12.1-19.1-02. See Access Indep. Health Serv. Inc. v. Wrigley, No. 08-2022-CV-01608 (N.D. S. Cent. Dist. Ct. Jan. 23, 2024) (order denying defendant’s motion to strike and denying … Continue reading Survivors and victims of rape and incest can obtain abortions up to six weeks gestation.^[3]Id.

Following the U.S. Supreme Court’s decision to overturn Roe v. Wade in the case Dobbs v. Jackson Women’s Health Organization^[4]Dobbs v. Jackson Women’s Health Org., 597 U.S (June 24, 2022), rev’d Dobbs v. Jackson Women’s Health Org., 945 F.3d 265, 274 (5th Cir. 2019)., North Dakota attempted to enforce its trigger ban,^[5]N.D. Cent. Code § 12.1-31-12, amended by 2019 N. D. Laws ch. 126 (H.B. 1546); Letter from Drew Wrigley, Att’y Gen., to John Bjornson, Dir. N.D. Leg. Council (Jun. 28, 2022) … Continue reading which was subject to an injunction^[6]Access Indep. Health Serv. Inc v. Wrigley, No. 08-2022-CV-1608 (N.D. S. Cent. Dist. Ct. Oct 31, 2022) (confirming the preliminary injunction). Wrigley v. Romanick, et al., 2023 N.D. 50, No. 20220260, … Continue reading until the state repealed and replaced it with the current total ban.^[7]S.B. 2150, 68th Leg. Sess., Reg. Sess. (N.D. 2023).

North Dakota has repealed other laws related to abortion including the state’s gestational bans at six weeks,^[8]N.D. CENT. CODE § 14–02.1-05.2(1), repealed by S.B. 2150, 68th Leg. Sess., Reg. Sess. (N.D. 2023). twenty weeks post-fertilization,^[9]Id. § 14-02.1-05.3(3), repealed by S.B. 2150, 68th Leg. Sess., Reg. Sess. (N.D. 2023)., the ban on D&E procedures^[10]Id. § 14-02.1-04.2(2), repealed by S.B. 2150, 68th Leg. Sess., Reg. Sess. (N.D. 2023)., and the ban on abortions sought for reasons of sex or diagnosed or potential genetic abnormalities.^[11]Id. § 14-02.1-04.1(1), repealed by S.B. 2150, 68th Leg. Sess., Reg. Sess. (N.D. 2023). The state retains gestational bans on abortion after viability^[12]Id. § 14-02.1-03(2). and prohibits D&X procedures.^[13]N.D. CENT. CODE § 14-02.6-02(1). North Dakota law continues to include requirements that pregnant people must undergo a mandatory twenty-four-hour waiting period,^[14]Id. §§ 14-02.1-03(1), 14-02.1-02(11)(a). biased counseling,^[15]Id. § 14-02.1-02(11)(a)(2); id. §14-02.1-02(11)(b)(5), invalidated by Am. Med. Ass’n v. Stenehjem, 412 F. Supp. 3d 1134 (D.N.D. 2019). and be given the offer of having and viewing an ultrasound;^[16]N.D. CENT. CODE § 14-02.1-04-(4). as well as prohibitions on public funding,^[17]N.D. CENT. CODE § 14-02.3-01(3); § 15-10-48(1)(b)(3); § 15-10-49(1)(b)(3); N.D. ADMIN. CODE 75-02-02-08(2)(i); 2021 N.D. SB 2030. and private insurance coverage.^[18]N.D. CENT. CODE § 14-02.3-03. The state continues to require that both living parents, legal guardians,^[19]Id.§ 14-02.1-03.1(1)(a). or a judge^[20]Id. § 14-02.1-03.1(2). consent to a minor’s abortion.

North Dakota retains targeted regulation of abortion providers (TRAP) laws including requirements related to facilities,^[21]Id. § 14-02.1-04(2), invalidated by Miks v. Olson, No. CIV.A3-82-78, 1983 WL 869578, at *1 (D.N.D. Aug. 25, 1983); see also, N.D. CENT. CODE § 14-02.1-04(3). admitting privileges,^[22]Id. § 14-02.1-04(1). and reporting.^[23]N.D. CENT. CODE § 14-02.1-07. North Dakota law continues to restrict the provision of abortion care to licensed physicians^[24]Id. § 14-02.1-04(1). and still restricts providers from using telemedicine for the provision of abortion care.^[25]Id. § 14-02.1-03.5(5). Providers who violate North Dakota’s abortion restrictions may face civil and criminal penalties.^[26]See, e.g., id. §§ 14-02.1-03.2;14-02.6-02(1).

State Protections

North Dakota law does not include express constitutional or statutory protections for abortion. To the contrary, North Dakota’s policy preference to ban abortion to the fullest extent of the law: “[b]etween normal childbirth and abortion, it is the policy of the state of North Dakota that normal childbirth is to be given preference, encouragement, and support by law and by state action, it being in the best interests of the well-being and common good of North Dakota citizens.”^[27]Id. § 14-02.3-01(1). The state Supreme Court established that the constitutional rights to life and safety do include the right to an abortion, however only when an abortion is necessary to preserve the person’s like or health.^[28]Wrigley v. Romanick, 2023 ND 50, ¶ 27, 988 N.W.2d 231, 242 (N.D. 2023).

Post-Roe Prohibitions

In 2023, North Dakota repealed its 2007 trigger ban, ^[29]N.D. CENT. CODE § 12.1-31-12, amended by 2019 N. D. Laws ch. 126 (H.B. 1546),repealed by S.B. 2150, 68th Leg. Sess., Reg. Sess. (N.D. 2023). replacing it with a total ban. However, the state repealed its pre-Roe ban in 1973.^[30]N.D. CENT. CODE §§ 12-25-01, 12-25-02 (1970), repealed by 1973 N.D. Laws 300, ch. 116, §41.

Conclusion

Now that the Supreme Court has overturned Roe, North Dakota argues that it can enforce its total abortion ban with limited exceptions, which a trial court found unconstitutional in September 2024.