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To: Senate Judiciary Committee
From: Christopher Dodson, Executive Director
Subject: Senate Bill 2150
Date: January 16, 2023

The North Dakota Catholic Conference supports Senate Bill 2150 because it better states the Legislative Assembly’s previously enacted abortion laws for this post-Roe world.

Desiring to protect unborn human life from abortion, this legislative body has, over many sessions, enacted several laws prohibiting abortions or particular types of abortions. Some of those laws were constitutional under Roe and Casey, some were not. After the Dobbs decision, all of them are presumably constitutional under the U.S. Constitution.

Not all of them, however, are still needed. Some are absorbed or made superfluous by other statutes. In addition, some of the definitions and provisions are facially inconsistent. The purpose of SB 2150 is to address these problems. It is the result of months of work involving various experts and stakeholders.

Before explaining the bill’s details, it helps to review the previously enacted laws, how they overlap, and why some control over others.

first slide shows all the laws enacted that prohibit abortions in some way, the laws’ exceptions, and scopes according to weeks of gestation.

Without going into the details of each law, we can see that there is some overlap so that some laws are made superfluous by others. After removing those laws, we have left what is commonly called the “trigger law” which passed in 2007, and what is commonly called the “heartbeat ban,” which passed in 2013. Those two laws
look like this.

According to principles established by the North Dakota Supreme Court, the legislature is presumed to have known about earlier enacted laws and to have intended to replace them where applicable. In other words, the latter enacted controls. In this case, the heartbeat ban controls where applicable.

Applying this principle,
we have this.

In short, all abortions are prohibited except for reasons of rape or incest during the first six weeks and for the life of the mother or a medical emergency to prevent substantial and irreversible physical impairment of a major bodily function throughout pregnancy.

This is what the legislature has already passed and intended to go into effect.

The ultimate effect of these laws when combined and the judicial principles of construction are applied is not easily apparent. Almost immediately after the Dobbs decision, it became apparent that legislators, healthcare providers, activists on both sides, and journalists were confused about what law applied and when. Several legislators and representatives from pro-life organizations met and decided that it would be in everyone’s interest to work off one cleaned-up law. People might want to debate what should be the law, but first, let’s better state what is the law.

The result is SB 2150, the purpose of which is to better express and effect what the Legislative Assembly has already enacted. It does this by:

  • Expressing in one statute prohibitions previously enacted in separate statutes;
  • Removing obsolete language and language made moot by the scope of other broader statutes;
  • Making the language, definitions, and exceptions consistent;
  • Clarifying ambiguous language; and
  • Except when necessary to accomplish the above, not making any substantive changes to what the Legislative Assembly has already enacted.

Some other points about the bill are worth noting before we review the bill’s provisions. First, we examined parts of the Century Code other than the trigger law and the Abortion Control Act that might be impacted and addressed them when appropriate. Second, the bill preserves the typical structure of the Century Code by placing direct criminal violations in the Criminal Code and keeping in the Abortion Control Act the requirements for abortions that are legal. Third, we do not believe that SB 2150 impacts, one way or the other, the current case before the North Dakota Supreme Court because the changes made in SB 2150 do not impact the issue presented in that case.

Page 1 of the bill starts in the Criminal Code by making changes in Section 12.1-31-12, which was known as the “trigger law.” The definition of “abortion” is changed to match the definition used in the Abortion Control Act. That definition was more recently passed, is clearer, and expressly excludes treating ectopic pregnancies.

On page 2, lines 4 through 11, the bill inserts a definition of “medical emergency” that further down is made an exception to the prohibition. It is a cleaned-up version of the definition used in the Abortion Control Act. The changes on lines 12 through 18 also make the definitions consistent with the Abortion Control Act.

The changes on page 2, line 21 change the exceptions from affirmative defenses to direct exceptions. The “trigger ban” used affirmative defenses, in which a defendant would have to assert and then prove that the requirements for the exceptions existed. However, the “heartbeat ban,” which under the principles of construction applies to all abortions after six weeks gestation, uses direct exception language. Because the most recent legislation used exceptions rather than affirmative defenses, and because it makes no sense to use affirmative defenses for abortions occurring during the first six weeks of gestation, but not after, SB 2150 removes the affirmative defenses to direct exceptions for all abortions.

Page 2, lines 27 and 28, limits the exception for abortions in the case of rape or incest to abortions done in the first six weeks of gestation. The heartbeat ban enacted in 2013 does not contain exceptions for rape or incest. Since this is the controlling law and because the purpose of the heartbeat ban was to prohibit abortions after six weeks gestation, the exception exists only for those weeks. This is the existing law, with or without SB 2150.

On page 3, line 3, the bill adds a medical emergency exception to the prohibition. This exception existed in the heartbeat ban and would now apply to all abortions.

This concludes the criminal code section of the bill. It revises the existing law to incorporate the heartbeat ban, includes the medical emergency exception, changes the affirmative defenses to exceptions, and makes the language consistent with the Abortion Control Act.

The rest of the bill primarily addresses changes to the requirements necessary for those abortions that are still permitted. As it always has been, most of these requirements are in the Abortion Control Act. These provisions primarily affect the Department of Health and Human Services, the courts, and the informed consent requirements.

On page 3, lines 22 through 24, the definition of “Down syndrome” is removed, as is the definition of “genetic abnormality” on page 4. These definitions were used in the ban on abortions for reasons of Down syndrome or genetic abnormality. This ban is now superfluous, so it and the corresponding definitions are removed.

The change on page 4, line 26, is an example of where the language is made more consistent with other sections of the code.

At the bottom of page 5, the definition of “medical emergency” was revised to remove language no longer needed because it related to the ban on abortions after twenty weeks gestation, which is also no longer needed. This revised definition is the same definition in the criminal code section discussed earlier.

The deletion on page 6, lines 10 through 12, also removes language that is no longer needed.

The next change is on page 8. This section concerns the materials produced by the Department of Health and Human Services that, in addition to being made available to the public, must be provided to a woman seeking an abortion by the physician or the physician’s assistant twenty-four hours before the abortion. Since most abortions would be prohibited in North Dakota, it makes sense that the materials include information about what is prohibited and what is allowed.

The changes on page 9, lines 9 through 16 add to the abortion data report form that must be submitted to the Department of Health and Human Services for every abortion an indication of whether the abortion was to prevent the death of the mother or because of rape or incest. The state currently does not collect that data.

On page 10, lines 21 and 23, the bill removes a requirement that a wife receives consent from her husband before obtaining an abortion. This language was found unconstitutional many years ago and at this time it is not known whether it would be allowed under the Dobbs framework. Considering that the only abortions that would now be allowed would be for saving the life of the mother, a medical emergency, or because of rape or incest, we decided to remove the language.

Keeping with the principle of not substantively changing the existing laws, the parental consent requirement with a judicial bypass is retained. However, because the only abortions for minors that would be subject to the parental consent requirement would be those because of reasons of rape or incest, language is added on page 13 to require the judge to enter a finding that those reasons existed if the judicial bypass is used. Medical emergencies, including those to prevent the death of the minor, are already excluded from the parental consent provisions.

On page 14, lines 12 through 16, the bill removes language made superfluous by the definition of “medical emergency.”

The changes on page 15 clarify that after twelve weeks of pregnancy an abortion may only be done in a hospital and that an abortion after the unborn child has reached viability has additional certification requirements.

The changes on page 16 remove language no longer needed because it relates to provisions that are now moot.

The new language on page 17 adds that the physician must include on the abortion report whether the abortion was to prevent the death of the mother or was because of reasons of rape or incest.

The language at the top of page 21 is removed because it subjected a physician to disciplinary action for violating the heartbeat ban, which is now removed from the code. Another section of the existing law subjects a physician to disciplinary action for a conviction for any felony. (See Section 43-17-31(1)(b).)

Finally, we come to the repealed sections.
These sections were either made moot by the scope of other sections or are incorporated into the revised Section 12.1-31-12.

These revisions might not be perfect. We might find other sections or statutes that should be revised. There may exist other parts of the Abortion Control Act not concerning the prohibitions that the committee may consider.

Senate Bill 2150, however, provides a better way than the existing statutes of implementing what the legislature has already enacted and it removes unnecessary and confusing language. It is the conference’s hope that if legislators want to change these laws in this session they offer amendments to this bill.

Senate Bill 2150 does not enact new bans on abortions. All the prohibitions in SB 2150 already exist and they would still exist if SB 2150 is not enacted. However, if it does not pass:

  • Defendants would have to rely on affirmative defenses for abortions excepted under the law if the abortion occurred within the first six weeks of gestation, but not for abortions occurring after six weeks of gestation;

  • Questions could arise as to whether the treatment of ectopic pregnancies or abortions in cases of medical emergencies would be legal during the first six weeks of gestation, but no such questions would arise after six weeks of gestation; and

  • Confusion could exist as to which law would be violated when more than one statute encompasses the prohibited abortion.

Ultimately, the question presented by SB 2150 is not about whether a person supports or opposes the abortion bans. It is about whether we want a clearer, better statute.

For these reasons, the North Dakota Catholic Conference requests a “Do Pass” recommendation on SB 2150.

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The North Dakota Catholic Conference acts on behalf of the Roman Catholic bishops of North Dakota to respond to public policy issues of concern to the Catholic Church and to educate Catholics and the general public about Catholic social doctrine.
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