Capital Briefs

Abortion restrictions in North Dakota affirmed

North Dakota Supreme Court Upholds Abortion Restrictions – a Welcome Win, Despite “Splintered” Opinions

Thomas More Society’s “friend of the court” brief opposed abortion plaintiffs’ claim that the state’s constitution negated its chemical abortion restrictions

(October 30, 2014 – Bismarck, North Dakota) – Just two days ago, nearly on the eve of next Tuesday’s Election Day when North Dakota voters are due to vote on a proposed “human life” amendment to their state constitution (called “Measure 1”), North Dakota’sSupreme Court finally handed down its decision, rejecting a long-pending constitutional challenge, based on the state constitution rather than on federal abortion law, targeting a 2011 state law regulating so-called “chemical” abortions.  In this case, MKB Management Corp. vs. Burdick, which was orally argued in Bismarck almost a year ago, in December, 2013, an abortion provider and others sued to bar enforcement of this state abortion regulation on the sole stated ground that the law violated North Dakota’s state constitution.  Acting on behalf of North Dakota’s Catholic Conference, the Chicago-based Thomas More Society filed a friend-of-the-court brief last October, 2013, arguing that there was no state constitutional right to abortion, and therefore, that the plaintiffs’ entire lawsuit was devoid of any legal basis.

While the five Justices of the North Dakota Supreme Court issued a variety of opinions, the bottom line is that a majority of Justices reversed the lower court’s injunction ruling by which it had barred enforcement of the state law, which mandated that “chemical abortions” be administered and used only as approved (and limited) by the federal Food & Drug Administration (FDA).

The district court’s ruling against the law had been premised on its underlying recognition that a fundamental right to abortion existed under various provisions in the state constitution.  Thus the court’s ruling, if upheld on appeal, threatened a wide range of abortion regulations that North Dakota had enacted, including legally mandated parental consent, informed consent, and waiting periods, as well as public funding restrictions, all of which could also be held unconstitutional in violation of the North Dakota Constitution. But now the North Dakota Supreme Court’s reversal of the lower court’s decision leaves intact not only the chemical abortion measure specifically targeted by the MKB Management lawsuit, but also all of North Dakota’s other abortion restrictions.

While the case’s outcome in the Supreme Court must be counted as a very welcome development, the confusing array of multiple opinions on the part of the five Justices leaves uncertainties to be resolved in later cases or on any further appeal in MKB itself.  Thus two Justices wrote opinions stating (or strongly implying) that the North Dakota Constitution does not confer a right to abortion, but two other Justices said otherwise.  The fifth Justice said it was unnecessary to rule on the state constitutional issue because the law at issue violated the federal constitution.  Thus whether the state constitution does, or does not, confer a right to abortion remains to be resolved at a later date.

Moreover, the two Justices who said that the state constitution confers a right to abortion also said that the laws violated the federal constitution.  Ordinarily, that would have created a decisive majority (3/5) on the question whether the state law violated the federal constitution.  But North Dakota’s state constitution incorporates a peculiar provision, to the effect that no law may be held unconstitutional unless four of the five Justices concur.  Thus lack of an extraordinary “super-majority” proved fatal to the pro-abortionists’ claim that the state law violated the federal constitution.

Finally, one of the two Justices who agreed that there is no right to abortion under the North Dakota Constitution expressed the view – as Thomas More Society contended in its amicus brief – that the plaintiffs never raised any distinct federal challenges but rather sued solely on grounds that the law was unconstitutional under the state constitution.  Therefore, the Society argued, no Justice should even address, let alone opine on, any federal constitutional challenge.  This issue would complicate, as indeed it should block, any effort by plaintiffs to press a further appeal, by petitioning for review before the U.S. Supreme Court as they would be asking our highest Court to pass on issues they never even bothered to raise when they first filed their lawsuit a few years ago.

Paul Linton, who was the principal author of the Society’s amicus curiae brief while serving as its special counsel, had argued that “nothing in the text, history or interpretation of the North Dakota Constitution requires such a radical inclusion of abortion.”  The brief also urged:  “The North Dakota Constitution ‘must be interpreted in light of the rights and liberties it was created to uphold, and not the philosophical viewpoints of the judiciary who hold the responsibility of interpretation.’  Nothing in the state constitution was intended to create or recognize a right to abortion.”

Linton, a constitutional scholar, is author of the widely acclaimed state-by-state analysis of state constitutions with respect to abortion rights claims, Abortion Under State Constitutions (2d ed. 2012, North Carolina Academic Press), underwritten by the Society.

Tom Brejcha, president and chief counsel of Thomas More Society, noted that the Society’s client, the Catholic Conference, was urging North Dakotans that their Supreme Court’s “split opinion [in the MKB case] demonstrates more than ever why North Dakotans must pass Measure 1 on November 4,”[1] as “[t]he people of North Dakota have a right to decide this question before the abortion lobby comes back into the state to try again to strike down laws that even the U.S. Supreme Court has said we can pass.”

The Society’s friend-of-the-court (amicus curiae) brief is available here.

The North Dakota Supreme Court’s decision is available here.


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