The North Dakota Supreme Court has upheld the state’s near-total abortion ban, reversing a lower court decision.
In a ruling released last Friday in Access Independent Health Services, Inc., et al. v. Drew H. Wrigley et al., the high court addressed whether North Dakota’s 2023 abortion ban could lawfully remain in effect.
Although three of the five participating justices concluded that the statute was unconstitutional, state law requires a supermajority of the court—not a simple majority—to strike down an enacted statute on constitutional grounds.
Justices Daniel Crothers and Lisa Fair McEvers, joined by District Judge Daniel Narum—who sat in for recused Justice Douglas Bahr—took the position that the ban violates constitutional protections.
Meanwhile, Chief Justice Jon Jensen and Justice Jerod Tufte ruled that the law was constitutional, with Tufte writing that the argument that the ban was “unconstitutionally vague” was invalid.
“Because the Plaintiffs have presented only hypothetical scenarios and have not demonstrated the statute is vague as applied to any actual conduct, their facial challenge fails to satisfy our established precedent,” he wrote.
Tufte further noted that while the law’s exception for medical emergencies is not exhaustive, it still provides sufficient clarity.
“The serious health risk exception does not present a clear answer to every imaginable situation. No statute can. This statute provides minimum guidelines to avoid arbitrary and discriminatory enforcement, and also provides fair warning to a reasonable person about what conduct is prohibited,” he stated.
The contested statute was enacted in April 2023, when then-Gov. Doug Burgum signed a bill outlawing abortion in all circumstances except cases involving a “serious medical emergency” for the mother, or when rape or incest is reported and the unborn child is six weeks gestation or younger.
The Red River Women’s Clinic in Fargo challenged the ban later that year, filing suit in July 2023. In September 2024, Burleigh County District Judge Bruce Romanick ruled in favor of the clinic, finding the law unconstitutional—an outcome the Supreme Court has now reversed.
