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Abortion would become illegal in North Dakota if Supreme Court overturns Roe v. Wade

The North Dakota Legislature passed a "trigger" law in 2007 that would ban abortion within 30 days if the Supreme Court ever changed direction on the controversial procedure. There are exceptions to the law if the mother's life is in danger and in cases of rape or incest.

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The Red River Women’s Clinic, North Dakota's lone abortion provider, is pictured on Tuesday, May 3, 2022, in downtown Fargo.
Alyssa Goelzer/The Forum
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BISMARCK — Abortion would be outlawed in North Dakota if the U.S. Supreme Court overturns the landmark 1973 Roe v. Wade decision and allows states to prohibit the procedure.

A leaked draft opinion from the high court published Monday, May 2, by Politico suggests the justices might do just that in the coming months.

Writing on behalf of a supposed majority of the court, Justice Samuel Alito called the Roe v. Wade decision "egregiously wrong from the start” and said it should be overturned. The leak of a draft opinion, which could change before publication, is unprecedented in the modern era, according to court experts.

The North Dakota Legislature passed a "trigger" law in 2007 that would ban abortion within 30 days if the Supreme Court ever changed direction on the controversial procedure.

The law would make it a Class C felony for anyone to perform an abortion, unless a pregnant female performs an abortion on herself. A Class C felony is punishable by up to five years in prison and a $10,000 fine.

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There would be exceptions to the abortion ban if the mother's life is in danger and in cases of rape or incest.

Attorney General Drew Wrigley said his office is still studying its role in the potential implementation of the trigger law, though he noted the Supreme Court has not officially made a ruling that overturns Roe.

Wrigley said if the law were in place, local state's attorneys would be charged with prosecuting violations of the law, but special prosecutors from his office would also have jurisdiction.

A dozen other states have similar trigger laws, including Texas, Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, Oklahoma, South Dakota, Tennessee, Utah and Wyoming. The Guttmacher Institute, a pro-abortion rights research organization, estimates a total of 26 states, including Montana, are "certain or likely" to ban abortion if the Supreme Court overturns Roe v. Wade.

If the high court overturns Roe, the U.S. Congress could pass legislation to make abortion legal or illegal across the whole country.

The Red River Women's Clinic in Fargo is North Dakota's lone abortion provider. Director Tammi Kromenaker called the draft opinion “absolutely devastating” but not totally unexpected from a court that has signaled it might dismantle Roe.

Kromenaker said the clinic is committed to "maintaining the status quo" and has been working on a contingency plan to move its facility to Moorhead if abortion becomes illegal in North Dakota.

Minnesota is "less hostile" to abortion rights and would allow the clinic to operate, Kromenaker noted. She would not disclose whether the clinic has purchased property on the other side of the Red River.

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Minnesota Gov. Tim Walz vowed Monday to uphold legal abortion in his state if he is reelected later this year.

Kromenaker noted that abortion is still legal in North Dakota for the time being and those with an appointment can still come into the clinic.

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The door of the Red River Women’s Clinic is seen on Tuesday, May 3, 2022, in downtown Fargo.
Alyssa Goelzer/The Forum

Former U.S. Attorney Tim Purdon, a Bismarck lawyer who specializes in American Indian law, said North Dakota's American Indian tribes could technically allow abortion clinics to operate on their reservations even if the state were to ban abortion. There are currently no abortion clinics on any of North Dakota's five reservations.

Socially conservative North Dakota lawmakers have a recent history of passing strict anti-abortion laws, many of which have been shot down by courts after costly legal battles.

The Fargo clinic successfully sued North Dakota in 2013 after lawmakers passed the nation's first bill banning abortion after the detection of a fetal heartbeat. The Supreme Court declined to take the case, effectively upholding lower courts' decisions to block the law from going into effect.

Prominent North Dakota political figures from both sides of the aisle began to chime in on the draft opinion leaked Monday.

Gov. Doug Burgum said he welcomes "the prospect of this issue being returned to the states where it belongs," but the Republican noted the Supreme Court has not yet issued an official opinion.

U.S. Rep. Kelly Armstrong, R-N.D., said overturning Roe v. Wade "would be a tremendous victory for the unborn and for states’ rights."

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North Dakota House Minority Leader Josh Boschee, D-Fargo, criticized the draft opinion in a tweet, saying that "none of us are safe from the GOP's overreach."

"Are we not a nation rooted in individual liberty, self determination & limited government intervention?" Boschee said.

Jeremy Turley is a Bismarck-based reporter for Forum News Service, which provides news coverage to publications owned by Forum Communications Company.
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