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North Dakota Supreme Court Affirms Life-Preserving Abortion as a Fundamental Right Under the State’s Constitution

On March 16, 2023, the North Dakota Supreme Court agreed with arguments brought by Weil attorneys and co-counsel, the Center for Reproductive Rights, that a ban criminalizing providers of life and health-preserving abortions violates the state constitution’s guarantees of life, liberty, safety, and happiness. The ban has been blocked since July 27, 2022. The decision means that abortion will remain legal in North Dakota and people’s access to life-saving abortions will be protected while the case proceeds in a lower court.

The court’s ruling came after Weil pro bono client, the Red River Women’s Clinic, challenged North Dakota Trigger Ban, which, if it had gone into effect, would have prohibited nearly all abortions in the state and imposed a maximum of five years in prison and a $10,000 fine on abortion providers. Weil and its partners secured a temporary restraining order delaying the implementation of the ban from its initial effective date of July 28, 2022, and later won a preliminary injunction blocking the ban from taking effect until a court ruling on the ban’s constitutionality under the state constitution. Weil partner Luna Barrington traveled to North Dakota to argue the winning motion for preliminary injunction. North Dakota Attorney General Drew Wrigley then asked the high court to intervene, and a hearing was held over the order blocking the ban on November 29, 2022. Center for Reproductive Rights attorney Meetra Mehdizadeh did the oral argument and Weil contributed to the briefing before the North Dakota Supreme Court.

In its majority opinion, the North Dakota Supreme Court states: “The North Dakota Constitution explicitly provides all citizens of North Dakota the right of enjoying and defending life and pursuing and obtaining safety. These rights implicitly include the right to obtain an abortion to preserve the woman’s life or health.” They add that this fundamental right to abortion is supported by the “history and traditions of North Dakota.” And finally, the majority writes that the ban that “on its face criminalizes a life preserving abortion, infringes unnecessarily on a woman’s fundamental right to seek an abortion to preserve her life or health, at least in part, cannot withstand strict scrutiny.”

The Weil team includes Litigation associates Colin McGrath, Melissa Rutman, Naz Akyol, Alexandra Blankman, Casey D'Alesandro, Liz Grefrath and Lauren Kelly in New York, and is led by Litigation partner Luna Barrington in New York.