BISMARCK -- Gov. Jack Dalrymple's signature on what would be among the strictest abortion laws in the country could cost the state hundreds of thousands, if not millions, of dollars defending the laws in court.
Activists favoring legalized abortion say the pending laws in North Dakota would likely put the state into a lawsuit, arguing that they violate the U.S. Supreme Court's 1973 Roe v. Wade decision, which ruled that abortions are legal up until the point of viability outside the womb, or about 24 weeks.
For an example of what an abortion law battle might cost, North Dakota needs only to look to its neighbor to the south.
South Dakota Gov. Dennis Daugaard's budget proposal for 2012 asked for the Legislature to add $1 million to its legal defense fund, which was approved, knowing it would have to face a lawsuit over a law requiring a three-day waiting period for women seeking abortions.
The South Dakota attorney general's office told the Sioux Falls Argus Leader in September 2011 that it estimated legal challenges to that law could cost $1.75 million to $4.15 million.
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Pam Sharp, director of North Dakota's Office of Management and Budget, said there hasn't been any reason to establish a fund, especially since the office can request funding from the state's Emergency Commission.
"Up until now it hasn't been an issue. The attorney general's office has worked within its authority," Sharp said.
But with a current balance of $30,000 in the attorney general's budget for litigation fees, and a request only for the office's usual $50,000 biennium appropriation for those fees, some wonder whether the state is addressing the fiscal impact that court battles could bring.
The attorney general's office was given $142,000 in November from the state's Contingency Fund, used during the interim in case cash begins to dry up.
North Dakota does have a Risk Management Fund under the budget office, but it only covers tort, or civil, claims or litigation brought against the state. It does not cover a constitutional challenge.
Some lawmakers argued that money to fight a court battle needs to be attached to the abortion bills.
Sen. Ray Holmberg, R-Grand Forks, chairman of the Senate Appropriations Committee, said it's difficult to put state funding behind individual pieces of legislation because the Legislature doesn't know what the court costs may be.
"You can't try to second guess every issue because we don't know," he said.
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South Dakota established its Extraordinary Litigation Fund in 2006, which covers the cost of outside counsel, settlement costs and other fees.
South Dakota's fund has been used a few times to help cover costs associated with losing abortion-related court battles.
Planned Parenthood was paid $623,000 in fees by South Dakota, resulting from two challenges to abortion laws over the last decade. This did not include the state's own attorney hours and resources, according to Jennifer Aulwes, spokeswoman for Planned Parenthood of Minnesota, North Dakota and South Dakota.
The organization led the charge because it operates the state's sole abortion provider in Sioux Falls, which would have been most affected.
South Dakota lost Planned Parenthood v. Janklow, a case filed in 2002, requiring the state to pay about $410,000 in legal fees.
The laws that were challenged attempted to ban abortion and mandated that abortions after the 12th week of pregnancy be performed in a hospital.
Steven Morrison, assistant professor at the University of North Dakota School of Law, guessed a private attorney could ask for $250,000 to argue any of the cases against the new laws if the bills are enacted.
"It could shape up to be a contentions, high-profile case that could continue to drag on," he said. "As a private attorney, I would want to have enough money up front to cover legal fees."
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So far, Attorney General Wayne Stenehjem's office has determined there could be a $60,000 fiscal impact if Senate Bill 2368 is signed into law. The bill defines life as starting at conception and prohibits most abortions after the 20th week of pregnancy.
The estimates were taken from litigation costs the state has incurred during other cases over the past few years, according to Liz Brocker, spokeswoman for the attorney general's office.
The attorney general's office is in the middle of litigation over a bill passed by the Legislature in 2011 that prohibited the use of an abortion-inducing drug with the intent of causing an abortion.
So far, the case has cost $22,975 for expert witnesses, travel and a court reporters. It does not include daily costs incurred with the attorney general's office.
The case will be taken up April 16 in Fargo.
Brocker wouldn't comment Thursday on whether Stenehjem has met with Dalrymple about the bills, just that the office "routinely provides legal counsel to state agencies and officials."
Potential challenges?
As far as potential lawsuits against the state, North Dakota's only abortion clinic, the independent, nonprofit Red River Women's Clinic in Fargo, receives pro-bono, or free, legal counsel from the Center for Reproductive Rights, a group headquartered in New York whose mission is to use "the law to advance reproductive freedom as a fundamental human right that all governments are legally obligated to protect, respect, and fulfill."
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Jordan Goldberg, state advocacy counsel for the center, couldn't say what the center planned to do if the bills become law.
The clinic's director, Tammi Kromenaker, said she has been speaking with Goldberg and the center throughout the legislative session.
"We don't want to see our doors closed, we will do anything and everything in our power to keep abortions safe and legal and available in North Dakota," Kromenaker said. She didn't say whether the clinic would take the matter to court.
Worth the fight
Rep. Bette Grande, R-Fargo, the prime sponsor of the first two bills that passed, the "heartbeat" bill and prohibition on abortions for gender or genetic abnormality, said the state already spends millions of dollars in legal battles with the Environmental Protection Agency, so litigation costs shouldn't matter. "Is that more important than the life of a child?"
Sen. Margaret Sitte, R-Bismarck, has been championing the legislation since the beginning of the session. She asked, "What is the value of a human life?" and said any number relative to litigation costs right now is arbitrary since it is unclear how any lawsuit would be handled.
"I just don't see the cost as an issue right now with the state's budget," she said.
She said Liberty Counsel, a pro-life nonprofit firm, has contacted her expressing its willingness to do pro-bono work on any issue.
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Liberty Counsel this week confirmed its willingness to help defend the legislation in a news release.
"Life issues go to the very heart and soul of our conscious," Sitte said. "People donate to causes they believe in."
Vulnerable
Aulwes said the bills "are no doubt unconstitutional, and they will be litigated should the governor sign them into law."
"These are expensive lawsuits to have and it's unfortunately something that will fall to the taxpayers of North Dakota and not Personhood USA or any other national group pushing for these laws to pass at the state level," she said.
UND's Morrison said any law like the heartbeat bill that prohibits an abortion before 24 weeks -- a heartbeat can be detected as early as six weeks into the pregnancy -- is unconstitutional because it would prohibit an abortion before viability, which was decided by the U.S. Supreme Court.
"If you have absolute prohibition prior to viability, that is clearly an undue burden and clearly unconstitutional," he said. "Anybody who looks at the legal issue knows this is a losing case."
Reach Jerke at tjerke@forumcomm.com or 701-255-5607
