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North Dakota justices fire questions at lawyers during hearing on blocked abortion ban

Solicitor General Matthew Sagsveen told the North Dakota Supreme Court that Burleigh County District Judge Bruce Romanick "misconstrued the law" in blocking the abortion ban.

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North Dakota Solicitor General Matt Sagsveen argues before the North Dakota Supreme Court on Tuesday, Nov. 29, 2022, in Bismarck.
Tom Stromme / The Bismarck Tribune
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BISMARCK — A complex question over whether North Dakota's abortion ban should remain blocked appeared before the state's top judicial panel on Tuesday, Nov. 29.

North Dakota's five Supreme Court justices peppered attorneys on both sides of the controversial issue with questions about constitutional rights, legal precedent and judicial process.

The Red River Women's Clinic sued the state in July after Attorney General Drew Wrigley affirmed that a 2007 abortion ban would be triggered by the U.S. Supreme Court's decision to overturn Roe v. Wade.

In the months that followed, Burleigh County District Judge Bruce Romanick twice sided with the abortion clinic by blocking the ban from taking effect while the case is adjudicated. The clinic, which had been North Dakota's lone abortion provider, moved from Fargo to neighboring Moorhead, Minnesota, earlier this year, citing the North Dakota government's anti-abortion stance.

North Dakota Solicitor General Matthew Sagsveen told the high court Tuesday that Romanick "misconstrued the law" in granting the clinic an injunction.

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The state argued Romanick erred by failing to weigh the state's "substantial probability" of succeeding in the case when temporarily blocking the ban. Sagsveen contended that the lack of a "controlling precedent" on whether abortion is a constitutional right means the state has a high likelihood of winning the case.

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Meetra Mehdizadeh, staff attorney at the Center for Reproductive Rights, argues before the North Dakota Supreme Court on Tuesday, Nov. 29, 2022, in Bismarck.
Tom Stromme / The Bismarck Tribune

Meetra Mehdizadeh, an attorney for the clinic, said North Dakota's trigger law is extreme and applies more restrictions on abortion than the state had prior to the Roe decision in 1973.

Mehdizadeh, who is employed by the New York-based Center for Reproductive Rights, said the ban's lack of exceptions would cause "catastrophic harm for patients, physicians, hospitals and the entire health care industry.”

The trigger law only offers medical professionals “affirmative defenses” for acting in their best judgment to save a mother's life and for treating victims of rape or incest. That means doctors could still be charged with a Class C felony for violating the law, but they would have a defense in court that could negate criminal liability.

Doctors previously told Forum News Service that the law would delay emergency medical care for patients experiencing pregnancy complications as doctors consider their own legal liability.

“There is no reason a patient should have to undergo physical and psychological torture during a pregnancy loss because the law has tied their doctor’s hands," Mehdizadeh said.

Justice Lisa McEvers asked Mehdizadeh if cases of rape and incest would have to be proven in court before a doctor can perform an abortion. Mehdizadeh said the burden of proof would fall on the doctor, which represents another flaw in the trigger law.

Sagsveen said the inclusion of affirmative defenses in the abortion ban is beneficial to doctors.

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Justice Daniel Crothers asked Sagsveen if the Supreme Court should be concerned about addressing the core issue of the lawsuit before Romanick has gotten a chance to hear the full case.

Sagsveen said the state has argued from the beginning that the merits of its case are "the most important factor." He added that he's not sure what new information would come to light in a trial. Mehdizadeh said fast-tracking the case without having each side present evidence would be improper.

Wrigley told Forum News Service after the hearing there are several routes the Supreme Court could take, and it's unclear how the justices will proceed. The high court could lift the injunction and send the case back to the district court; remand the case to the district court without lifting the injunction; or rule over the whole case without sending it back to the district court.

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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