North Dakota Supreme Court: State's abortion ban will remain blocked 🧵

[In It to Win It]

Anthony Michael Kreis
@AnthonyMKreis


North Dakota Supreme Court: "citizens . . . have a right to enjoy and defend life and a right to pursue and obtain safety, which necessarily includes a pregnant woman has a fundamental right to obtain an abortion to preserve her life or her health." https://www.ndcourts.gov/supreme-court/opinion/2023ND50

The North Dakota Supreme Court holds that because under the state constitution abortion access is a fundamental right, state law must satisfy strict scrutiny to meet constitutional muster.

The Court say North Dakota has a history and tradition of protecting abortion access when it is medically necessary.

Because the Court addresses only whether the preliminary injunction was appropriate, it does not reach broader questions with respect to the precise scope of the state constitution's right and what kind of abortion access is required under it.

What kind of evidence might be proffered to help suss out what the North Dakota Constitution might demand the state allow going forward? A concurring opinion has some thoughts:

In another concurring opinion, members of the court explain why fundamental rights jurisprudence under the North Dakota Constitution should not necessarily follow the federal constitution and ways in which state jurisprudence has been more protective of rights.

The bottom line is the North Dakota Supreme Court will not permit a total abortion ban but beyond that the question remains open. This will be an interesting case to follow along with litigation still percolating under other state constitutions including Georgia and Kentucky.

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