North Dakota Supreme Court blocks abortion ban, says Constitution protects procedure

North Dakota’s Supreme Court upheld a lower court’s decision to block a ban on abortions in the state, and said the state constitution protects abortion rights in some situations.

The ruling means abortion in the state remains legal until nearly 22 weeks after a women’s last period, while the case proceeds in a lower court.

Although the state Supreme Court’s decision is not the final word on the matter, it is notable for its analysis of the state constitution. The court went beyond the question it was asked: whether the lower court judge had overstepped his power in blocking the ban.

In a majority opinion, the ruling said that judge was within his rights but added that the state constitution protects “the right to enjoy and defend life and a right to pursue and obtain safety,” which includes the right of a pregnant woman to “obtain an abortion to preserve her life or her health.”

State constitutions have become key arbiters in the nation’s state-by-state abortion battles. The overturning of Roe v. Wade by the U.S. Supreme Court last year kicked the question of abortion to the states. Lawsuits have since been filed in about a dozen states that have banned abortion, with abortion rights lawyers arguing the prohibitions are unconstitutional under state guarantees of privacy, health, liberty or family planning.

Two state Supreme Courts have made final decisions: South Carolina ruled abortion was included in its constitutional protections; Idaho ruled its constitution did not protect the procedure.

In North Dakota, the state law prohibiting nearly all abortions was blocked three times last year by Judge Bruce Romanick of the Burleigh County District Court, after North Dakota’s sole abortion provider, Red River Women’s Clinic, filed a lawsuit against the ban in June.

Romanick first issued a temporary restraining order against the ban a day before it was set to take effect in July, then extended the ban in August and October, saying the North Dakota Constitution protected the right to abortion.

North Dakota Attorney General Drew Wrigley filed a motion asking the high court to determine if Romanick had abused his discretion by blocking the ban from taking effect while the case proceeds.

Four of the five justices on the state Supreme Court were appointed by Gov. Doug Burgum, a Republican, and one was elected in a nonpartisan election.