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Port: Judge's decision to delay North Dakota abortion clinic's closing was correct, but also a technicality

The likelihood that four justices on the state Supreme Court, in the wake of the U.S. Supreme Court striking down Roe, are going to read into the state constitution a new right to abortion that was never the intent of anyone who ever drafted a word of the language currently in that document, is downright fanciful.

Protesters and patient escorts on the sidewalk near the Red River Women's Clinic on Wednesday, June 29, 2022.jpg
Anti-abortion protesters and patient escorts stand on the sidewalk outside of the Red River Women's Clinic on Wednesday, June 29, 2022, in downtown Fargo.
C.S. Hagen/The Forum
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MINOT, N.D. — There were many headlines yesterday trumpeting a decision by South Central Judicial District Court Judge Bruce Romanick to delay the impending closure of North Dakota's only abortion clinic.

Some of the headlines said the judge ruled "in favor" of the clinic in Fargo, and while that's accurate, it may have also given many in the public the idea that the courts would find a way to keep the abortion clinic open.

Folks, that's just not going to happen. Romanick's ruling was on a technicality having to do with timing.

North Dakota's bipartisan trigger law, as it was originally written in 2007, was scheduled to go into effect 30 days after our state's attorney general certified to the Legislature that, in his opinion, the Roe v. Wade precedent would be struck down by the Supreme Court.

But in 2019, the Legislature changed the timing slightly, indicating that the law would be triggered once the Supreme Court issued a certified judgment. The Supreme Court issued its ruling overturning Roe last month, and Attorney General Drew Wrigley sent certification to the Legislature on June 28, but the judgment from the Supreme Court wasn't certified until this week, July 26.

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Romanick, rightly, ruled that the original certification was invalid.

Wrigley has reportedly sent a new certification to the Legislature this week. In the meantime, the Red River Women's Clinic in Fargo gets another month of reprieve.

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But the law is still coming. Lawyers representing the abortion clinic are, in addition to their objections to the timing of Wrigley's certification, still asking the courts to find right to abortion in the state constitution, now that the right the U.S. Supreme Court interpreted into existence in the national constitution has been overturned.

That's a long shot. As I noted in a previous column , the North Dakota Supreme Court has already been asked to find a right to abortion in the state constitution, and they didn't.

Nor are they likely to.

In the 2014 opinion I'm referring to, just two of five justices found a right to abortion in the state constitution. Two of those who didn't are still on the court today. The state constitution requires a super-majority of four justices to conclude that a law is unconstitutional.

The likelihood that four justices on the state Supreme Court, in the wake of the U.S. Supreme Court striking down Roe, are going to read into the state constitution a new right to abortion that was never the intent of anyone who ever drafted a word of the language currently in that document, is downright fanciful.

Still, lawyers need to bill, and activists need to look like they're doing stuff. So it goes.

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Out here in the real world, abortion proponents, if they want there to be a right to abortion in North Dakota, are going to have to engage in the democratic process. They will have to find a majority to implement it as law in the Legislature, or, barring that, a constitutional ballot measure that can garner sufficient support from the electorate.

And that's as it should be. The law should be created intentionally, by the people or their elected representatives, not analyzed into existence by law professors in robes.

Besides, the democratic process may prove more fruitful than many abortion proponents believe, even in North Dakota.

Imagine a ballot measure that puts in state law a ban on abortions after 12 weeks that could be described to the public, not as legalization, but a common-sense restriction.

A proposal like that might find more support from the North Dakota electorate than you'd expect.

Opinion by Rob Port
Rob Port is a news reporter, columnist, and podcast host for the Forum News Service. He has an extensive background in investigations and public records. He has covered political events in North Dakota and the upper Midwest for two decades. Reach him at rport@forumcomm.com. Click here to subscribe to his Plain Talk podcast.
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