The Burleigh County Courthouse is pictured on Thayer Avenue in Bismarck on March 13, 2024. (Michael Achterling/North Dakota Monitor)
A judge vacated North Dakota’s abortion ban in a Thursday ruling, finding the law unconstitutionally vague and an infringement on medical freedom.
South Central Judicial District Court Judge Bruce Romanick’s order came as part of a lawsuit challenging the law brought last year by reproductive health care doctors and an abortion clinic.
Romanick declared the law “unconstitutionally void for vagueness” and found that “pregnant women in North Dakota have a fundamental right to choose abortion before viability exists.”
The ban, enacted by the Legislature in 2023, makes abortion illegal in all cases except rape or incest if the mother has been pregnant for less than six weeks, or when the pregnancy poses a serious physical health threat.
The plaintiffs, which include reproductive health care doctors and the Moorhead, Minnesota-based Red River Women’s Clinic, in their complaint said the law not only infringes on individual rights, but also puts health care providers in danger by not specifying when an abortion may be performed for health reasons.
Attorneys for the state have previously argued that the law is not unlawfully vague, and was written with extensive input from North Dakota’s medical community — including some of the plaintiffs.
Tammi Kromenaker, director of the Red River Women’s Clinic, said Thursday’s decision gives her hope.
“I feel like the court heard us when we raised our voices against a law that not only ran counter to our state constitution, but was too vague for physicians to interpret and which prevented them from providing the high quality care that our communities are entitled to,” Kromenaker said in an email.
The clinic had been North Dakota’s sole abortion clinic but moved from Fargo to Minnesota after a prior abortion ban went into effect.
North Dakota Attorney General Drew Wrigley said the state will appeal the decision.
“While I have appropriate regard for the State District Court, a careful reading of Judge Romanick’s decision reveals flaws in his analysis and interpretation of controlling precedent,” Wrigley said in a statement.
The ban, which was adopted with overwhelming support by both chambers of the Republican-dominated Legislature, established penalties of up to five years in prison and a maximum fine of $10,000 fine for any health care professionals found in violation of the law.
The North Dakota Supreme Court last year struck down a similar abortion law adopted by lawmakers in 2007.
That law, often referred to as a “trigger ban,” went into effect after the U.S. Supreme Court in 2022 overturned the federal right to abortion established by Roe v. Wade.
When it struck down the trigger ban, the state Supreme Court ruled that North Dakotans have a right to access abortions that preserve the health of the mother, Romanick’s order notes.
Romanick’s order takes issue with both exemptions in the abortion law.
Under the health exemption, he reasoned, even doctors who make good-faith medical decisions to perform an abortion could theoretically face prosecution.
“As currently written, a North Dakota physician may provide an abortion with the subjective intent to prevent death or a serious health risk, yet still be held criminally liable if, after the fact, other physicians deem that the abortion was not necessary or was not a reasonable medical judgment,” he wrote.
He warned that the law could discourage doctors from performing abortions for legitimate health reasons for fear of criminal penalty.
He said the ban also doesn’t explain how doctors should determine whether a patient qualifies for the rape and incest exemption, given that physicians are not legal experts and that sex crimes are notoriously difficult to investigate.
Romanick wrote that North Dakota’s checkered history with women’s rights factored into his decision, as well, noting the state constitution did not recognize women as equal citizens when it was originally adopted in 1889.
“If we can learn anything from examining the history and prior traditions surrounding women’s rights, women’s health, and abortion in North Dakota, the Court hopes that we would learn this: That there was a time when we got it wrong and when women did not have a voice,” he wrote. “This does not need to continue for all time, and the sentiments of the past, alone, need not rule the present for all time.”
Christina Sambor, one of the attorneys representing the plaintiffs in the case, said the ruling “reaffirms fundamental rights for pregnant people in North Dakota.”
“I think this is a really powerful ruling that speaks to the broad impacts on women’s ability to live a full, happy and healthy life,” Sambor, an attorney at Gender Justice, said.
The law will remain in effect until Romanick issues a judgment repealing the ban, Sambor said. The judge directed the plaintiffs to draft a proposed judgment within 14 days.
State Sen. Janne Myrdal, R-Edinburg, who sponsored the 2023 bill that created the ban, blasted the judge’s ruling Thursday. She said lawmakers had worked to fix legal issues the North Dakota Supreme Court had identified in the trigger ban.
North Dakota’s Legislature meets again in 2025 but Myrdal said the focus should be on defending the law that was passed in 2023.
“The losers today are the unborn children and their moms and dads, not any activists. There’s no winner in this,” she said.
Romanick announced earlier this year he would retire and not seek reelection in November. The former Burleigh County prosecutor was first elected in 2000 and reelected in 2012 and 2018.
“Judge Romanick will go into his retirement after a long career having made the wrong decision on the most important case he’s ever had,” Myrdal told the North Dakota Monitor.
The North Dakota Catholic Conference said in a statement Thursday it is “shocked and greatly disturbed” by the judge’s decision, saying it “embraces a position more radical and liberal than Roe v. Wade itself.”
Meanwhile, North Dakota’s Democratic-NPL Party called the ruling a “victory for women’s reproductive rights.”
“North Dakotans deserve the freedom to make deeply personal health care decisions without interference from government extremists,” Rep. Karla Rose Hanson, D-Fargo, said in a statement. “This law was especially cruel for victims of sexual violence — providing a rape and incest exception but only within six weeks, before most women know they’re pregnant.”
Sambor noted that even if Rominick’s decision is left intact by higher courts, abortion access remains extremely limited in North Dakota.
“We continue to have a lot of work to do to protect pregnant North Dakotans,” Sambor said.
This story was originally produced by the North Dakota Monitor which is part of States Newsroom, a nonprofit news network, including the Daily Montanan, supported by grants and a coalition of donors as a 501c(3) public charity.