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Judge blocks new North Dakota abortion law, finds it violates physicians' constitutional protections against 'compelled speech'

Red River Women's Clinic.jpg
The Red River Women’s Clinic is seen July 23, 2019, at 512 1st Ave. N., Fargo. Michael Vosburg / Forum Photo Editor

BISMARCK — A federal judge blocked the state of North Dakota from enforcing a new law requiring physicians to inform patients that it may be possible to reverse a drug-induced abortion Tuesday, Sept. 10, ruling that it violates doctors' First Amendment protections against "compelled speech."

U.S. District Judge Daniel Hovland sided with the American Medical Association and the state's sole abortion clinic, which brought the lawsuit and requested a preliminary injunction against a law they argued would force physicians to lie to patients.

Supporters of House Bill 1336, which the Republican-controlled Legislature easily passed before Gov. Doug Burgum signed it in March , argue it would give women the full information needed to make a decision about ending a pregnancy. Opponents say it's unsupported by science.

“It’s simple: patients need to be able to trust their providers,” Tammi Kromenaker, director of the Red River Women’s Clinic in Fargo, said in a statement. “Forcing us to give our patients false medical information would violate our medical ethics and endanger the trust our patients place in us.”

The order is meant to preserve the status quo while the case proceeds. It doesn't address an older law the plaintiffs are also challenging that requires physicians to tell patients that an abortion will terminate the life of a “whole, separate, unique, living human being.”


Though the new law technically took effect Aug. 1, the state had agreed not to enforce it until the judge ruled on the preliminary injunction request.

A spokeswoman for Republican Attorney General Wayne Stenehjem said Tuesday morning his office was reviewing the order but declined to comment further.

Medora Nagle, executive director of North Dakota Right to Life, an anti-abortion group that's not a party to the lawsuit, said she was "shocked" by the ruling.

"We're just not sure why they're so determined to keep women in the dark," she said.

Seven other states have passed laws requiring abortion providers to tell women about so-called "abortion reversal," according to the Center for Reproductive Rights, which filed the lawsuit on behalf of the plaintiffs. In his order, Hovland said North Dakota's statute goes "far beyond any informed consent laws" addressed by other courts and violates "a physician’s right not to speak."

Hovland, who was nominated to the court by then-President George W. Bush in 2002, wrote that there appears to be no "real, serious debate within the medical profession" about whether a medical abortion can be reversed.

Proponents of the legislation have said women can undo the abortion process by taking the hormone progesterone after the first of two drugs used in a medical abortion, but the judge noted the American College of Obstetricians and Gynecologists have denounced claims about "reversal" treatments.

"A law which mandates that physicians become mouthpieces for a false, misleading, and controversial 'abortion reversal' message would not survive any level of constitutional scrutiny," Hovland wrote. "State legislatures should not be mandating unproven medical treatments, or requiring physicians to provide patients with misleading and inaccurate information"


The law was one of two major pieces of abortion legislation the North Dakota Legislature passed this year. The other outlaws a second trimester abortion method, but it only becomes effective with federal court action or a change in the U.S. Constitution.

The North Dakota legislative efforts reflected a larger push by abortion opponents across the country to restrict the procedure under a more conservative U.S. Supreme Court.

There were 1,141 induced abortions recorded in North Dakota last year, marking the lowest figure since recordkeeping began almost four decades ago, according to state health officials. About 70% of the Fargo clinic's patients who decide to pursue an abortion receive a surgical procedure, according to court records.

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