Port: North Dakota's Supreme Court is close to manufacturing a right to an abortion in the state constitution
"The question of legal abortion, as difficult as it is, should be left to our legislatures and the ballot box. Not a bunch of lawyers in a courtroom."
MINOT, N.D. — Back in 2020, it was clear that the North Dakota Supreme Court wanted to impose, amid the COVID-19 pandemic, a moratorium on residential evictions, so the court invented a premise that allowed them to do so.
Under the auspices of their authority as administrators of the state court system, the justices stopped residential evictions . That this was an explicitly political move, and not a health-driven decision, was clear from the court stopping residential eviction proceedings while commercial evictions and other sorts of proceedings were still allowed to go forward.
This was a policy decision — again, a political decision — that the legislative or executive branches should have made. But the court made it instead. The justices wanted a certain political outcome, and they found a way to get it.
Which seems very much in line with how Chief Justice Jon Jensen sees his job. "I think judges like to help people," Jensen said shortly after being sworn into the court back in 2017 . "And I think you're no longer an advocate but you're in some ways finding the legal solution, but the solution."
That's a fundamentally incorrect view of the role of the courts in our society, yet it's showing up in how Jensen's court is doing its job, specifically in the post-Roe v. Wade litigation over North Dakota's near-total ban on abortions.
In issuing an opinion upholding a ridiculous district court decision to roadblock a bipartisan law duly passed by the elected representatives of the people, the court has laid the groundwork for inventing a right to an abortion in the state constitution.
To be clear, the court hasn't established a total right to an abortion. Not yet. Rather, the court has found one only in instances where the life and health of the mother are at risk, and that's where things get confusing.
"After review of North Dakota’s history and traditions, and the plain language of article I, section 1 of the North Dakota Constitution, it is clear the citizens of North Dakota have a right to enjoy and defend life and a right to pursue and obtain safety, which necessarily includes a pregnant woman has a fundamental right to obtain an abortion to preserve her life or her health," Chief Justice Jon Jensen wrote in the court's opinion.
The court has left open the question of abortion in instances where the mother simply doesn't want to get pregnant, but it's not hard to see what direction they're going. Under these fuzzy auspices, any abortion might be justified as long as some medical professional is willing to say that it's necessary for the life and health of the mother.
At no point in the history of this state has a single word been added to our state constitution with the intent of creating a right to an abortion. But now the state Supreme Court has found one so substantial that they're concluded, in this opinion upholding the district court's injunction against North Dakota's ban, that the pro-choice groups challenging the law will likely be successful.
Few of you are going to be willing to set aside your feelings on abortion and consider the process at work here, but I'm going to ask you to do it anyway: Should our laws be written by lawmakers, or judges?
This opinion from the court is going to inspire a lot of strong reactions from the public, and those reactions are going to be rooted in how the people feel about abortion, but we need to set that issue aside and focus on the fact that this court has shown a willingness to go arrogate to themselves the authority to legislate.
The question of legal abortion, as difficult as it is, should be left to our legislatures and the ballot box. Not a bunch of lawyers in a courtroom.