Explainer: Challenge pending to North Dakota abortion ban

North Dakota's only abortion clinic, the Red River Women's Clinic, has gone to state court seeking to declare the state's imminent abortion ban is contrary to the state constitution.

The lawsuit also seeks to at least delay the July 28 date for the ban to kick in.

Clinic director Tammy Kromenaker has said the lawsuit should at least give more time to provide abortion care in North Dakota while she prepares for a possible relocation a few miles away to Moorhead, Minnesota, where abortion remains legal.

Here are some questions and answers about abortion law and the clinic's complaint:

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What is the trigger law?

North Dakota is one of about 10 states that enacted trigger laws to ban abortion in the event the U.S. Supreme Court overturned its landmark 1973 Roe v. Wade ruling legalizing the procedure nationwide.

The North Dakota Legislature passed its trigger law in 2007 that made abortion illegal in the state except in cases of rape, incest and the life of the mother. The measure said the ban will go into effect 30 days after the “issuance of the judgment in any decision of the United States Supreme Court which, in whole or in part, restores to the states authority to prohibit abortion.”

What about the constitutional question?

The clinic argues that state law guarantees the rights of life, liberty, safety and happiness, all of which protect the right to abortion.

North Dakota courts faced a similar question in a 2011 bill meant to regulate medication abortions. In declaring that law unconstitutional, Cass County Judge Wickham Corwin said it would essentially eliminate the procedure altogether and illegally restrict abortion rights.

The case went to the state Supreme Court, where views on the constitutional question were mixed. Chief Justice Gerald VandeWalle and Justice Dale Sandstrom both found the 2011 ban constitutional. Justices Carol Ronning Kapsner and Mary Muehlen Maring agreed with Corwin's finding. Justice Daniel Crothers said the issue need not be decided by the state's highest court.

It takes four justices to declare a law unconstitutional and the result was a reversal of Corwin's ruling.

Was the ban certified too early?

North Dakota Attorney General Drew Wrigley last month authorized the abortion ban to start July 28, stating that conditions for enforcement “have been satisfied.”

The lawsuit said Wrigley acted too early. It argues that even though the Supreme Court released its opinion on June 24, it does not issue its judgment to the lower courts until at least 25 days after the opinion. The judgment is a separate order from the option, the suit said.

Wrigley said his office is “carefully reviewing and evaluating” the complaint and will not comment further until they file their response to the suit, which is due on Tuesday.

What do experts say?

Steven Morrison, a University of North Dakota law professor who wrote a brief for the 2011 case, said the clinic faces an uphill battle on the constitutional question because the state Supreme Court has a history of being supportive of abortion restrictions.

“Simply because Roe vs. Wade is overturned doesn’t suggest to me the North Dakota Supreme Court or any district court judge in North Dakota is going to start changing their tune and start reading into the state constitution’s right to abortion," Morrison said.

Of the justices who heard the 2011 case, only VandeWalle and Crothers remain, but the court hasn't become more liberal, Morrison said. He noted that VandeWalle, the author of the 2011 opinion, is not seen as conservative by North Dakota standards and is viewed as an “intelligent, perceptive judge who is willing to listen to both sides.”

VandeWalle was “very clear” in his majority opinion of the 2011 medication abortion measure that state law doesn’t offer protection for abortion, said Laura Hermer, a Hamline Mitchell law professor who specializes in abortion cases. She believes Wrigley was premature with the trigger ban date.

However, Hermer said that the lawsuit is likely just delaying what the clinic "considers to be the inevitable.”

When will the suit be decided?

That’s unclear. Experts say it’s likely that a district judge will hit pause on the abortion ban to give the players time to lay out arguments on the constitutionality. And a quick ruling could add fuel to an appeal.

Meanwhile, a GoFundMe page established to help pay for the clinic’s transition from Fargo to Moorhead has raised nearly $1 million.

More about the trigger ban

Meanwhile, doctors and hospitals say they have concerns about how the looming ban fits with existing state law on how they may handle dangerous pregnancies.

The Abortion Control Act, passed by the state in 2013, would in theory protect doctors who perform abortions if a pregnant patient is deemed to be at serious risk of substantial and irreversible impairment. The trigger law only mentions defenses for doctors who perform the procedure to save the life of the mother. The trigger law has exceptions for abortions in cases of rape or incest, the Abortion Control Act does not.

“The are some serious concerns about the inconsistencies,” said Courtney Koebele, executive director of the North Dakota Medical Association.