Port: Whatever the courts decide, North Dakota must address its unworkable abortion ban

"The Legislature must step in and fix these problems before our acquisitive courts swipe the issue for themselves again," Rob Port writes.

Anti Abortion.jpg
Anti-abortion protestors hold signs toward pedestrians and passing traffic Wednesday, July 11, 2018, outside the Red River Women's Clinic in Fargo.
Erin Bormett / Forum News Service
We are part of The Trust Project.

MINOT, N.D. — North Dakota's near-total ban on abortions, which but for the reticence of our judicial branch of state government would be the law post-Roe v. Wade, is not good public policy.

It was introduced by Democratic lawmakers during the 2007 legislative session and passed by a bipartisan majority that, I am convinced, never believed the law would actually be enforced.

The lawmakers who voted on the law no doubt thought that Roe, gross judicial overreach that it was, would never be overturned.

But in that rarest of events in politics — a branch of government willingly giving back power it usurped — the U.S. Supreme Court turned the question of abortion back over to state legislatures where it should have been all along.

It remains to be seen whether North Dakota's courts will bow to political pressure and magic into existence some right to an abortion in North Dakota's constitution. However that comes out, North Dakota has some work to do on its existing statute.


The so-called "trigger" ban, as it stands now, is not workable.

The law bans all abortions, making the act a felony, but then allows for some "affirmative defenses" against prosecution for abortions performed in cases of rape or incest, or to protect the mother's health.

The problems with the way this policy is written are manifest.

As a practical matter, how does one establish that a rape has occurred, thus allowing for a legally defensible abortion? Can the pregnant woman simply say that she was raped? Must she name the responsible party? Does that criminal act have to be adjudicated, with innocence or guilt established in a court of law, before the abortion can then be defensible?

"A bill before the Legislature in Bismarck ... would remove from the North Dakota Game and Fish Department their authority to regulate deer baiting. ... This is foolishness."
"You could hear an audible groan in the chamber," one lawmaker told me shortly afterward. "Absolutely embarrassing."
Bochenski says the president of UND told him that Chinese students and faculty feel "uncomfortable." Also, a state veterinarian weighs in on controversy around deer baiting.

And then there's this "affirmative defense" stuff. If you were a doctor, would you want to provide lawful abortion services in instances of rape or incest or health risks, knowing that you may have law enforcement looking over your shoulder?

There's a due process problem here, too. Most criminal law puts the burden of proof on the state when it comes to establishing that a crime has been committed, but this law puts the burden of proof on medical professionals, tasking them with proving that any abortions they perform defensible.

This is a perversion of how the American criminal justice system should work.

The Legislature must step in and fix these problems before our acquisitive courts swipe the issue for themselves again.


What our lawmakers ought to do is give up on a total ban and instead embrace a compromise ban on abortions after something like 12-15 weeks. The 15-week ban Republican Sen. Lindsey Graham proposed at the federal level is one model that could be adapted for the state.

Not only would such a policy be enforceable, but it would also be in line with where most North Dakotans, and most Americans, are at on abortion these days.

Poll after poll shows majorities opposed to both total bans and completely unfettered abortion. What the people want is some sensible policy between those extremes.

Our lawmakers can, and should, deliver just that.

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 Click here to subscribe to his Plain Talk podcast.
What To Read Next
"Life is short, ends in a moment, and we don’t think much about it some days. ... It’s a scenic highway, and we should keep it that way, go a bit slower, and enjoy life."
"Some of Fargo's leaders would have us believe they're fighting gun violence. But they're not. They're wasting our time fighting over something that wasn't a problem in the first place."
It's hard to rock across North Dakota while the state Legislature is in session, according to columnist Tony Bender.
"North Dakota's lawmakers could help reduce property insurance premiums, and take away some upward pressure on property taxes, by giving the state's fire departments back their full funding."