The North Dakota Supreme Court yesterday upheld a set of misguided restrictions on medication abortion, allowing what is effectively a ban on early, non-surgical abortions in the state to go into effect immediately.

The decision overturned a lower court order finding the law, known as HB 1297, unconstitutional and permanently blocking its enforcement.  North Dakota’s only abortion clinic, the Red River Women’s Clinic, challenged HB 1297 – which, among other things, required doctors to follow an outdated protocol for abortion medication approved by the Food and Drug Administration in 2000. That protocol on the use, dosage and administration of mifepristone no longer represents the predominate medical standard of care. Instead, doctors have developed a new standard endorsed by the American College of Obstetricians and Gynecologists that calls for a significantly lower dosage of mifepristone, one that can be safely administered beyond seven weeks.

A majority of the justices on the North Dakota Supreme Court – three of five – found that the medication restrictions at issue were unconstitutional under federal law. But the North Dakota state constitution requires that four of the justices must decide that a law is unconstitutional before it can be struck down. Only two justices found that the restrictions violated the North Dakota state constitution; one justice – who did find that the law violated the federal constitution – did not decide the state constitutional question.

Nancy Northup, President and CEO of the Center for Reproductive Rights, which represented the clinic in the case, said that the court’s decision “directly conflicts with courts across the U.S. that have rejected the idea that politicians have any place in the practice of medicine or in women’s deeply personal decisions about their pregnancies, their health, their families, and their future.” The clinic may decide to appeal the decision to the US Supreme Court.

The US Court of Appeals for the Ninth Circuit ruled earlier this year that similar medication abortion restrictions in Arizona were unconstitutional, and last fall, the US Supreme Court dismissed an appeal of an Oklahoma Supreme Court decision permanently blocking medication abortion restrictions in that state. Oklahoma has since passed new restrictions that are now being challenged in court. Ohio and Texas have also passed restrictions on medication abortion in their states.

North Dakota has seen a rash of anti-choice legislation in the past few years. In 2013, the Governor signed into law what amounted to a 6-week abortion ban. The ban was later declared “invalid and unconstitutional“. The state also passed a TRAP law (Targeted Regulation of Abortion Provider) that required doctors who provide abortions to have admitting privileges at a local hospital. This requirement was also challenged in court, and that case settled earlier this year.

Now, North Dakota voters are deciding on whether to approve a “personhood” amendment that would outlaw all abortion, some forms of birth control, and all in vitro fertilization in the state. Known as Measure 1, this ballot measure, would change the North Dakota state constitution to create an “inalienable right to life” for humans “at any stage of development” – including the moment of fertilization and conception. If passed by North Dakota voters in this election, it will be the first personhood amendment to take hold in the United States.

“Giving constitutional rights to a nonviable fertilized egg, embryo, or fetus – which Measure 1 would do – is dangerous to women,” wrote Kate Black, a student at North Dakota State University who is working through the Feminist Majority Foundation to help defeat the amendment. “Measure 1 would not only eliminate a woman’s right to choose abortion; it would destroy her control over her own reproductive health.”

The North Dakota Medical Association, which represents North Dakota doctors, has opposed Measure 1, as well as the American Congress of Obstetricians and Gynecologists.

Early voting in North Dakota began on October 27 and runs until Friday, October 31. Election Day is November 4. There is no voter registration in North Dakota, but an ID is required.

Media Resources: Bismark Tribune 10/29/14; Center for Reproductive Rights 10/28/14; North Dakota Supreme Court 10/28/14; RH Reality Check 10/28/14, 3/14/14; Feminist Newswire 10/22/14, 4/17/14; Feminist Campus Blog 10/16/14; Guttmacher Institute 10/1/14; North Dakota Secretary of State; Vote No on Measure 1

 

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