Restrictions

North Dakota planned to begin enforcing its trigger ban in late July 2022.^[1]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 However, the trigger ban is  subject to an injunction and is not in effect.^[2]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).

North Dakota law generally prohibits abortion at six weeks,^[3]N.D. CENT. CODE § 14–02.1-05.2(1). twenty weeks post-fertilization,^[4]Id. § 14-02.1-05.3(3). and after viability.^[5]Id. § 14-02.1-04(3). However, the six-week ban is permanently enjoined.^[6]MKB Mgmt. Corp. v. Burdick, 16 F. Supp. 3d 1059 (D.N.D. 2014), aff’d sub nom. MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768 (8th Cir. 2015). It also prohibits D&X procedures,^[7]N.D. CENT. CODE § 14-02.6-02(1). D&E procedures,^[8]Id. § 14-02.1-04.2(2) and abortions sought for reasons of sex or diagnosed or potential genetic abnormalities.^[9]Id. § 14-02.1-04.1(1). Pregnant people who seek abortion care must undergo a mandatory twenty-four-hour waiting period,^[10]Id. §§ 14-02.1-03(1), 14-02.1-02(11)(a). biased counseling,^[11]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.^[12]N.D. CENT. CODE § 14-02.1-04-(4). North Dakota limits public funding for,^[13]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 of, abortion.^[14]N.D. CENT. CODE § 14-02.3-03. North Dakota law generally requires that both living parents, legal guardians,^[15]Id.§ 14-02.1-03.1(1)(a). or a judge^[16]Id. § 14-02.1-03.1(2). consent to a minor’s abortion.

North Dakota’s targeted regulation of abortion providers (TRAP) laws include requirements related to facilities,^[17]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,^[18]Id. § 14-02.1-04(1). and reporting.^[19]N.D. CENT. CODE § 14-02.1-07. North Dakota law restricts the provision of abortion care to licensed physicians^[20]Id. § 14-02.1-04(1). and restricts providers from using telemedicine for the provision of abortion care.^[21]Id. § 14-02.1-03.5(5). Providers who violate North Dakota’s abortion restrictions may face civil and criminal penalties.^[22]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.”^[23]Id. § 14-02.3-01(1).

Post-Roe Prohibitions

In 2007, North Dakota enacted a trigger ban, ^[24]N.D. CENT. CODE § 12.1-31-12, amended by 2019 N. D. Laws ch. 126 (H.B. 1546). however, the state repealed its pre-Roe ban in 1973.^[25]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 the state can enforce its trigger ban to prohibit abortion entirely. However, the trigger ban is currently enjoined.