Story by Mark Joseph Stern
In the nine months since the Supreme Court overturned Roe v. Wade, pregnant patients in red states across the country have had their lives imperiled by abortion bans. Many post-Roe laws are actually harsher than their 19th century counterparts, reflecting the anti-abortion movement’s conviction that exceptions for a patient’s life should be as vague and narrow as possible. As an inevitable consequence of these draconian laws, many doctors refuse to provide emergency abortions until an individual is actively dying—a sadly rational decision given the lengthy prison sentences they will receive if they cannot persuade a jury that they made the right call.
On Thursday, however, the North Dakota Supreme Court ruled that doctors and patients within its state lines would not face these awful choices: In a unanimous decision, the court declared that its state constitution protects abortion “where it is necessary to preserve her life or health,” blocking a ban that criminalized such procedures. It’s the first post-Roe decision of its kind, but likely not the last. As more Americans suffer the near-lethal consequences of modern abortion bans, conservative state courts will have to decide whether the government can value the life of a fetus over that of a patient.
The North Dakota legislature enacted the state’s current ban in 2007, intending it to take effect if and when the Supreme Court overruled Roe. But this summer, a state judge halted the law before it could spring into action, preserving the legality of abortion within the state (whose lone provider is in the process of moving to Minnesota). State officials pressed the state Supreme Court to lift the hold, and had good reason to assume they’d prevail: The court is made up of five Republicans, four appointed by a GOP governor and one elected to his seat. (How conservative is the state’s judiciary? One justice recused from the abortion case and was replaced by another Republican appointee from a lower court.)
But state officials encountered a problem when defending the ban: It has no true exception in cases where the patient’s life is endangered. Instead, it allows defendants to raise life endangerment as an affirmative defense once they are already being prosecuted. Unlike a genuine exception—which clarifies that a life-saving abortion is not a crime at all—this approach puts the burden on defendants to prove to a jury that they acted to save a patient’s life. If they do not succeed, they face up to five years’ imprisonment. A similar law in Tennessee has forced doctors to wait until a patient is at risk of imminent death before terminating a pregnancy. Yet Tennessee’s GOP-controlled legislature has resisted replacing its current “affirmative defense” provision with a true exception for the life of the patient, and Tennessee Right to Life staunchly opposes such a reform.
The North Dakota Supreme Court took a different path. In his majority opinion, Chief Justice Jon J. Jensen noted that the state constitution grants all residents the right “of enjoying and defending life and liberty” and “pursuing and obtaining safety and happiness.” These guarantees “implicitly include the right to obtain an abortion to preserve the woman’s life or health,” Jensen wrote. When the state classifies emergency abortions as de facto criminal unless proven otherwise, it deprives patients of “a right to enjoy and defend life and a right to pursue and obtain safety.” The chief justice backed up this conclusion by pointing out that North Dakota expressly permitted abortions to protect life or health in 1887, before it became a state, and preserved this exception in a series of statutes passed after its admission to the union in 1889. The right is thus “deeply rooted in North Dakota’s history and culture,” a key component of “ordered liberty before, during, and at the time of statehood.”
Technically, Jensen’s decision found a right to abortion only to protect a patient’s life or health. Yet it kept the entire abortion ban on hold, allowing the lower court to determine precisely how much of the law should remain permanently blocked. The ruling explicitly guarantees abortion access whenever it is “necessary to prevent severe, life altering damage”—but also appears to go further: Jensen wrote that while “the legislature can regulate abortion, it must do so in a manner that is narrowly tailored to achieve the compelling interest.” (This standard is known as strict scrutiny.) That language suggests that all abortion restrictions must survive strict scrutiny, not only those that protect a patient’s life or health. At a minimum, the ruling surely mandates great deference to a doctor’s judgment about when termination is necessary to preserve “health.” But it may also safeguard abortion rights more broadly. The opinion also points to medical journals published shortly after North Dakota’s statehood noting that being “mentally unfit” was a legitimate reason for an abortion, raising the possibility that mental health may sometimes justify termination today. Presumably, the ruling’s exact contours will be sussed out in future decisions.
In fact, this debate has already begun. In a separate concurrence to Thursday’s decision, Justice Jerod E. Tufte wrote that the right to a life-saving abortion merely tracks the existing “right of self-defense.” Just as any person has a right to use lethal force to defend their life, Tufte explained, a patient has a right to terminate a pregnancy that threatens their life. Justice Lisa Fair McEvers, by contrast, wrote that the state constitution may guarantee “additional fundamental rights” beyond an abortion to preserve life or health, particularly to ensure that women enjoy “the same natural and inalienable rights as men.” These differing visions of the right at issue may decide the future of abortion in North Dakota.
However, the court ultimately comes down on these bigger questions, one thing is now clear: North Dakota cannot compel patients to risk death before obtaining an emergency abortion. The judiciary has determined that the state cannot turn a high-risk pregnancy into a death sentence. We will soon see if other states’ courts follow suit, or if they agree with the now-mainstream Republican position that a fetus’ life simply matters more than the patient who is carrying it.