Abortion is illegal again in North Dakota after court reverses a judge’s earlier decision

North Dakota’s Abortion Ban Reinstated as State Supreme Court Deadlocks on Ruling

Abortion rights in North Dakota suffered a significant blow Friday when the state’s Supreme Court failed to reach the required majority to uphold a lower court’s decision that had previously struck down the state’s abortion ban.

The high court’s split decision—with three justices finding the ban unconstitutionally vague and two supporting its constitutionality—effectively reinstates the prohibition on abortion throughout the state. North Dakota’s constitution requires at least four of the five justices to agree for a law to be declared unconstitutional, a threshold that wasn’t met in this case.

The law now makes performing an abortion a felony punishable by up to five years in prison and a $10,000 fine, though patients themselves cannot be prosecuted. The ban contains limited exceptions for rape or incest in the first six weeks of pregnancy—before many women know they are pregnant—and to prevent the mother’s death or “serious health risk.”

In his written opinion, Justice Jerod Tufte argued that the natural rights guaranteed by the state’s 1889 constitution do not extend to abortion rights. “The law provides adequate and fair warning to those attempting to comply,” Tufte wrote, rejecting arguments about the ban’s vagueness.

Republican Attorney General Drew Wrigley celebrated the court’s decision, stating, “The Supreme Court has upheld this important pro-life legislation, enacted by the people’s Legislature.” Similarly, Republican state Senator Janne Myrdal, who introduced the 2023 legislation, expressed being “thrilled and grateful” that two justices recognized the law as “fully constitutional for the mother and for the unborn child.”

However, Justice Daniel Crothers, among the three justices who voted against the ban, defended the lower court’s ruling. “The vagueness in the law relates to when an abortion can be performed to preserve the life and health of the mother,” Crothers wrote. “After striking this invalid provision, the remaining portions of the law would be inoperable.”

The Center for Reproductive Rights, which challenged the ban, described the decision as “a devastating loss for pregnant North Dakotans.” Meetra Mehdizadeh, a senior staff attorney with the organization, said, “This cruel and confusing ban is incomprehensible to physicians. The ban forces doctors to choose between providing care and going to prison.”

North Dakota now joins 12 other states enforcing total abortion bans at all stages of pregnancy, with an additional four states prohibiting the procedure at or around six weeks gestational age. The legal battle follows the U.S. Supreme Court’s 2022 decision to overturn Roe v. Wade, which eliminated federal abortion protections and shifted the issue to state courts and legislatures.

The impact on North Dakota residents seeking abortion care will be immediate and significant. Even before this ruling, abortion access in the state was severely limited. North Dakota’s only abortion provider relocated from Fargo to neighboring Moorhead, Minnesota, in 2022, anticipating potential restrictions.

The legal journey to this point has been complex. District Judge Bruce Romanick had struck down the ban earlier this year after it was challenged by the Red River Women’s Clinic—formerly the state’s sole abortion provider—and several physicians. The state appealed that ruling, with both the district judge and the state Supreme Court previously denying requests to keep the ban in effect during the appeals process.

Those temporary reprieves allowed patients with pregnancy complications to seek care without fear of delay, but Friday’s ruling brings that period to an end.

The North Dakota case illustrates the patchwork of abortion laws emerging across the United States in the post-Roe era, with access increasingly determined by state borders. It also highlights the critical role state constitutions and their specific legal thresholds play in determining reproductive rights, as courts continue to interpret decades-old constitutional language in light of contemporary medical and social realities.