State Supreme Court Finds Right to Abortion; But from What?

By Christopher Dodson
Executive Director
North Dakota Catholic Conference
May 2023

On March 16, 2023, the North Dakota Supreme Court issued an opinion on the state’s “trigger ban” that could greatly set back the work to make North Dakota a sanctuary for life.

Rather than recite the complicated legal and procedural issues in the case, I want to focus on the court’s main holding. The court unanimously held that the North Dakota Constitution includes “a fundamental right for a woman to obtain an abortion in instances where it is necessary to preserve her life or health.”

Where in the state constitution did the court find this new right? Article I, Section 1 of the state constitutions states, in part, that all “individuals . . . have certain inalienable rights, among which are those of enjoying and defending life . . . and obtaining safety . . .” The court wrote that the rights to defend life and pursue and obtain safety “implicitly include the right to obtain an abortion to preserve the woman’s life or health.”

That section of the state constitution was adopted in 1889. The court did not cite any historical documents or legal authority to support its conclusion that the section was meant to include a right to abortion to save the life of the or to preserve her health. Instead, it baldly stated that the right was “implicit.”

The court did cite abortion laws from before and after statehood that exempted from prosecution abortions when they were necessary to save the life of the woman. From those statutes, it concluded that the right to abortion in these circumstances is “deeply rooted in North Dakota’s history and culture.”

A few problems with this reasoning stand out. First, if the right to abortion to save the life of the mother was considered so fundamental by the framers of our state constitution, why was it not explicitly written into the constitution? Second, the mere fact that the legislature repeatedly chose not to criminalize abortions necessary to save the life of the mother does not mean that there is a “fundamental right” to them in the state constitution. The legislature passes thousands of laws intended to protect life and health. Does the court’s decision mean that all those laws are also fundamental constitutional rights? And if that is the case, why do we need a process for amending the state constitution at all?

The problems with the opinion, however, do not stop there. As mentioned, the court cited in support of its holding state statutes enacted before and after statehood that included an exception for when the abortion was necessary to save the life of the woman. None of the statutes cited, however, included a health exception. Where, then, did the court get the right to abortion to preserve health?

The court apparently found the “health” right in the “obtaining safety” provision of the state constitution. Only once does the court try to explain its reasoning for the health finding. It stated: “Medical journals published shortly after statehood indicate it was common knowledge that an abortion could be performed to preserve the life or health of the woman.” The fact that abortions “could” be performed to preserve the health of the woman, however, is a far cry from saying that they were considered a constitutional right. Abortions “could” have been performed a hundred years ago for a myriad of reasons. That does not mean that the framers meant to include all of them as rights in the state constitution.

By the way, the medical journals cited by the court were two British medical journals published in 1914 — twenty-five years after the adoption of the state constitution.

The court leaves us guessing about what it means by “health.” Does it mean, what the U.S. Supreme Court said in Roe’s companion case, Doe v. Bolton? That case, now overruled, said that “health” included “all the factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the well-being of the patient.” If so, the court essentially ruled that there is a right to abortion on demand in North Dakota.

Or, did it mean that there is a right to abortion only when it is medically necessary to prevent a serious health risk? In other words, is the right limited to those circumstances when the abortion is necessary and when the abortion itself directly treats a serious health risk? There are hints in the opinion that this is what the court meant, but only future decisions tell us for sure.

By the time this column is published the “trigger ban” will likely be repealed. In some form, however, the litigation will continue. Let us pray that our state Supreme Court does not destroy all that we have done for life in North Dakota and all that we can do in the future.