In Wrigley v. Romanick, (ND Sup. Ct., March 16, 2023), the North Dakota Supreme Court refused to vacate a trial court’s preliminary injunction that barred enforcement of the state’s 2007 abortion ban whose effectiveness was to be triggered by the overruling of Roe v. Wade. In particular, the court concluded that the absence of an exception in the abortion ban for preserving the health of the mother was a critical defect in the law. The court said in part:
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….
Fundamental rights are those which are deeply rooted in history and tradition and are implicit in the concept of ordered liberty…. North Dakota’s history and traditions, as well as the plain language of its Constitution, establish that the right of a woman to receive an abortion to preserve her life or health was implicit in North Dakota’s concept of ordered liberty before, during, and at the time of statehood….
Justice Tufte filed a concurring opinion, saying in part:
At this time we consider only the preliminary injunction, and we need not decide the constitutionally necessary scope of any health exception.
Justice McEvers, joined by Justice Crothers and Judge Narum, filed an opinion concurring specially, and saying in part:
I write separately to explain how and why the rights protected under the North Dakota Constitution may be broader than those protected under the United States Constitution.
NPR reports on the decision.