N.D. judge delays ruling on abortion drug banA judge said Friday that he sees merits in arguments that a North Dakota law that restricts the use of drugs to cause abortions illegally restricts abortion rights.
By: Dale Wetzel, Associated Press
FARGO — A judge said Friday that he sees merits in arguments that a North Dakota law that restricts the use of drugs to cause abortions illegally restricts abortion rights.
East Central District Judge Wickham Corwin delayed a ruling on the lawsuit. But during a hearing that lasted almost 2½ hours, he appeared sympathetic to the argument that the law poses an “undue burden” on women who seek abortions, a standard that courts have used to strike down other state laws that attempted to restrict the procedure.
“I fully understand that I need to interpret this law, if at all possible, to avoid an unconstitutional result. I’d love to do that. Believe me, I would love to do that,” Corwin said during the hearing. “I can’t get there.”
The Red River Women’s Clinic of Fargo, which is North Dakota’s only abortion provider, is challenging the law, which the North Dakota Legislature approved last year.
One of its sponsors, state Rep. Bette Grande, R-Fargo, attended Friday’s hearing. Grande this year is seeking the Republican endorsement to run for the U.S. House.
Corwin issued a restraining order last July to stop the law from taking effect Aug. 1. He continued his order Friday until he rules on the clinic’s request for an injunction that would permanently block the law.
The judge declined to rule on separate requests filed by Kirsten Renata Franzen, an assistant attorney general who is defending the law, and Suzanne Novak, an attorney for the Center for Reproductive Rights in New York who is representing the clinic, that the lawsuit be dismissed. However, Corwin said he was unlikely to dismiss the lawsuit without a trial.
Most of the clinic’s abortions are surgical procedures, court documents say. The clinic performs surgical abortions for women up until their 16th week of pregnancy; medication abortions are done if a woman is pregnant for 63 days or less.
In court filings, the clinic has said more than 250 of the 1,300 abortions performed there annually are done by using a combination of two drugs, mifeprex and misoprostol.
The federal Food and Drug Administration has approved the marketing of mifeprex as a drug for ending pregnancies. It is used in combination with misoprostol, a treatment for stomach ulcers that is not labeled as an abortion-inducing drug.
North Dakota’s law says the use of any drug to cause an abortion must meet “the protocol tested and authorized” by the FDA and outlined on the drug’s label.
Because misoprostol is not labeled as an abortion-inducing drug, the law prohibits its use for that purpose, Novak said during arguments Friday. She said North Dakota law did not prohibit the “off-label” use of any other drug.
Opponents contend the law essentially bans medication abortions. Corwin, who quizzed both attorneys about their arguments during the hearing, told Franzen he believed opponents were probably right.
“You’ve got one drug ... that’s labeled for use in abortions, but you’ve got another drug that isn’t, and you need them both,” Corwin told Franzen. “I don’t get it. How do I get around that?”
Franzen replied that mifeprex alone could induce an abortion. Corwin replied: “So you’re suggesting that a doctor should give patients the (mifeprex) and just hope that that works? And if it doesn’t, then what do they do?”
Novak said the state had not offered evidence that medication abortions were unsafe, or less safe than the surgical procedure.
“This is like saying, you have a heart condition and you can either get medicine for this heart condition, or you can undergo surgery. But you know what? We’re going to decide, we’re just going to take the medication option off the table, and all of you have to get surgery,” Novak said. “That is an irrational law, and unconstitutional under any standard.”