North Dakota Constitution Likely Secures a Right to Life- and Health-Preserving Abortions

From today's North Dakota Supreme Court decision in Wrigley v. Romanick, written by Chief Justice Jon Jensen, joined by Justices Daniel Crothers and Lisa Fair McEvers, and by District Judge Daniel Narum, sitting by designation (in place of Justice Douglas Bahr, who was recused):

[W]e conclude RRWC has a substantial likelihood in establishing there is a fundamental right for a woman to obtain an abortion in instances where it is necessary to preserve her life or health. We need go no further here to determine whether there are fundamental rights broader in scope.

"Our overriding objective is to give effect to the intent and purpose of the people adopting the constitutional statement." To accomplish this we must construe the constitution in light of the contemporaneous history existing at and prior to the adoption of the constitutional provision.

North Dakota Constitution article I, section 1 was enacted in 1889 when North Dakota was admitted as a state to the Union. Section 1 provides, in part, "[a]ll individuals are by nature equally free and independent and have certain inalienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing and protecting property and reputation; pursuing and obtaining safety and happiness[.]" N.D. Const. art. I, § 1. The North Dakota Constitution explicitly provides all citizens of North Dakota the right of enjoying and defending life and pursuing and obtaining safety. These rights implicitly include the right to obtain an abortion to preserve the woman's life or health.

North Dakota's history and traditions support this conclusion. North Dakota has a long history of permitting women to obtain abortions to preserve their life or health. Prior to statehood, North Dakota, then part of the Dakota Territory, criminalized abortions but explicitly provided an abortion was not a criminal act if the treatment was done to preserve the life of the woman:

Every person who administers to any pregnant woman, or who prescribes for any such woman, or advises or procures any such woman to take any medicine, drug or substance, or uses or employs any instrument, or other means whatever, with intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life, is punishable by imprisonment in the territorial prison not exceeding three years, or in a county jail not exceeding one year.

… After statehood, North Dakota enacted a law which criminalized abortions but again explicitly provided an abortion would not be considered a criminal act if the treatment was done to preserve the life of the woman …. North Dakota's legislature repeatedly reaffirmed the criminal prohibitions in substantially the same form and always with the same exception for abortions "necessary to preserve her life." North Dakota did not criminalize life-preserving abortions until N.D.C.C. § 12.1-31-12 was enacted in 2007 and became eligible for enforcement in 2022.

Medical journals published shortly after statehood indicate it was common knowledge that an abortion could be performed to preserve the life or health of the woman.

There are not infrequently cases in which an abortion is imperative: the mentally unfit who might become deranged; the woman with a narrow brim or outlet because of which her life might be in danger and a Cesar[e]an section is the only relief; the woman who may bleed to death; the eclamptic; and those suffering from dangerous diseases. This class, fortunately, is small in number; and abortion is performed only after a deliberate and careful consultation in which the dangers of the abortion are weighed from every side.

Criminal Abortions, 34 Journal-Lancet 81, 82 (1914). Additionally, in the journal a doctor describes an abortion performed: "Mrs. T. first came under the writer's care for acute septic abortion. The uterus were emptied, and after a rather continued run of temperature the patient made a symptomatic recovery." North Dakota recognized and approved abortions performed to preserve the life or health of the woman.

The State asserts abortion cannot be included as a fundamental right, because the inherent rights reserved to the people under sections 1 and 12, such as the fundamental right of parents to parent their child, are distinguishable from abortion because abortion, unlike the right to parent one's own child, does not have longstanding roots in American culture. This assertion is incorrect, as noted above, North Dakota has a longstanding history of allowing pregnant women to receive an abortion to preserve her life or health. The legislature enacted and reaffirmed laws which always provided an exception to preserve the life of the woman up and until 2007 when N.D.C.C. § 12.1-31-12 was enacted as a trigger law. Like the right to parent one's own child, the right to receive a health or life-preserving abortion is deeply rooted in North Dakota's history and culture….

Because we hold the North Dakota Constitution provides a fundamental right to receive an abortion to preserve a pregnant woman's life or health, the constitutionality of N.D.C.C. § 12.1-31-12 must be analyzed under the strict scrutiny standard. A statute which restricts a fundamental right is subject to strict scrutiny standard of review which will only be justified if it furthers a compelling government interest and is narrowly tailored to serve that interest….

The State has a compelling interest in protecting women's health and protecting unborn human life, as these interests are at least of the same importance as compelling interests previously identified by this Court. Nevertheless, the State must still show N.D.C.C. § 12.1-31-12 is necessary to achieve the compelling state interests. While we note the legislature can regulate abortion, it must do so in a manner that is narrowly tailored to achieve the compelling interest. On its face, N.D.C.C. § 12.1-31-12 unnecessarily restricts a woman's access to an abortion to preserve her life or health….

Moreover, N.D.C.C. § 12.1-31-12 provides an affirmative defense only if in the professional judgment of the physician the abortion was necessary to prevent the death of the female. A pregnant woman is unable to obtain an abortion in order to preserve her health, regardless of the potential health consequences. Preserving the life or health of the woman necessarily includes providing an abortion when necessary to prevent severe, life altering damage. The United States District of Idaho explained the grave risks to health a pregnant woman faces:

Pregnant women in Idaho routinely arrive at emergency rooms experiencing severe complications. The patient might be spiking a fever, experiencing uterine cramping and chills, contractions, shortness of breath, or significant vaginal bleeding. The ER physician may diagnose her with, among other possibilities, traumatic placental abruption, preeclampsia, or a preterm premature rupture of the membranes. In those situations, the physician may be called upon to make complex, difficult decisions in a fast-moving, chaotic environment. She may conclude that the only way to prevent serious harm to the patient or save her life is to terminate the pregnancy—a devastating result for the doctor and the patient….

Yet if the physician does not perform the abortion, the pregnant patient faces grave risks to her health—such as severe sepsis requiring limb amputation, uncontrollable uterine hemorrhage requiring hysterectomy, kidney failure requiring lifelong dialysis, hypoxic brain injury, or even death. And this woman, if she lives, potentially may have to live the remainder of her life with significant disabilities and chronic medical conditions as a result of her pregnancy complication. All because Idaho law prohibited the physician from performing the abortion.

Granted, the Idaho statute offers the physician the cold comfort of a narrow affirmative defense to avoid conviction. But only if she convinces a jury that, in her good faith medical judgment, performing the abortion was "necessary to prevent the death of the pregnant woman" can she possibly avoid conviction. Even then, there is no certainty a jury will acquit. And the physician cannot enjoy the benefit of this affirmative defense if she performed the abortion merely to prevent serious harm to the patient, rather than to save her life.

A law that on its face criminalizes a life-preserving abortion, infringes unnecessarily on a woman's fundamental right to seek an abortion to preserve her life or health, at least in part, cannot withstand strict scrutiny.

The State asserts N.D.C.C. § 12.1-31-12 is narrowly tailored because it provides a "narrow" definition of abortion. Section 12.1-31-12 defines abortion as follows:

"Abortion" means the use or prescription of any substance, device, instrument, medicine, or drug to intentionally terminate the pregnancy of an individual known to be pregnant. The term does not include an act made with the intent to increase the probability of a live birth; preserve the life or health of a child after live birth; or remove a dead, unborn child who died as a result of a spontaneous miscarriage, an accidental trauma, or a criminal assault upon the pregnant female or her unborn child.

This definition is not narrowly tailored to women's health. Notably, the definition does not include abortions for ectopic pregnancies, which is a pregnancy where the fertilized egg "does not implant appropriately within the uterus" and is potentially lethal to the mother. Therefore, under the statutory construction of N.D.C.C. § 12.1-31-12, an abortion to treat an ectopic pregnancy would be a criminal act. As noted above, criminalizing life-preserving abortions is not necessary to promote the State's interests in women's health and protecting unborn human life….

Justice Jerod Tufte concurred in the judgment; he didn't sign with the majority opinion, though he said he agreed with it if properly understood:

I agree with the majority opinion, with the understanding that to reach the result here, "life or health" need not be understood more broadly than its application to the right of self-defense….

The North Dakota Constitution guarantees the "inalienable right[ ] … of enjoying and defending life and liberty." Commonly, an individual exercises this right of self-defense by responding to a threat of imminent serious bodily injury or death with physical force. Where a pregnancy raises a similar threat of serious bodily injury or death, the pregnant woman has a fundamental right to preserve her life and health with the aid of a physician. Our recognition of this fundamental right to preserve one's life does not depend on resolving the disputed point of pregnancy at which there are two lives that must be considered. The State has a compelling interest in protecting unborn human life, which RRWC does not dispute. We have long understood that a woman has an inalienable right to employ deadly force against another person when necessary to protect herself against death or serious bodily injury.

Likewise, the State's compelling interest on behalf of an unborn child must yield to the pregnant woman's right to abort a pregnancy when necessary to preserve her life or health.

If there is merely evidence sufficient to raise a reasonable doubt about a self-defense claim, a defendant is entitled to a jury instruction on self-defense and the State must prove the absence of self-defense as an element of the offense beyond a reasonable doubt. Where an abortion is performed in situations that fall within the constitutional right of self-defense, section 12.1-31-12, N.D.C.C., unconstitutionally places the evidentiary burden on the defendant to raise not merely a reasonable doubt, but to prove an affirmative defense by a preponderance of the evidence….

We do not decide here what scope of health risks may give rise to abortion as medical self-defense. In the district court, the parties will have opportunity to present historical evidence illuminating the meaning of Article I, § 1, and to further develop their legal arguments. Before Roe v. Wade (1973), restrictive abortion laws in North Dakota and nationwide uniformly recognized exceptions for abortion intended to save the woman's life. See Eugene Volokh, Medical Self-Defense, Prohibited Experimental Therapies, and Payment for Organs, 120 Harv. L. Rev. 1813, 1825 (2007) ("[T]he abortion-as- self-defense right is largely uncontroversial, at least when threats to the mother's life, and not just to her psychological health, are involved: it was accepted even in Chief Justice Rehnquist's Roe dissent, [and] it was recognized by all the restrictive abortion laws in effect when Roe was decided.")….

Justice Lisa Fair McEvers concurred, joined by Justice Crothers, and District Judge Daniel Narum:

I write separately to explain how and why the rights protected under the North Dakota Constitution may be broader than those protected under the United States Constitution…. The prominent late nineteenth century American legal scholar Thomas Cooley cautioned against mistaking a state constitution's recognition of a right as being the source of its creation:

In considering State constitutions we must not commit the mistake of supposing that, because individual rights are guarded and protected by them, they must also be considered as owing their origin to them. These instruments measure the powers of the rulers, but they do not measure the rights of the governed.

Professor Cooley explained a constitution "grants no rights to the people," but instead is "[d]esigned for their protection in the enjoyment of the rights and powers which they possessed before the constitution was made."

Professor Cooley also described the difference between the Constitution of the United States and a state constitution:

It is to be borne in mind, however, that there is a broad difference between the Constitution of the United States and the constitutions of States as regards the powers which may be exercised under them. The government of the United States is one of enumerated powers; the governments of the States are possessed of all general powers of legislation. When a law of Congress is assailed as void, we look in the national Constitution to see if the grant of specified powers is broad enough to embrace it; but when a State law is attacked on the same ground, it is presumably valid in any case, and this presumption is a conclusive one, unless in the Constitution of the United States or of the State we are able to discover that it is prohibited. We look in the Constitution of the United States for grants of legislative power, but in the constitution of the State to ascertain if any limitations have been imposed upon the complete power with which the legislative department of the State was vested in its creation…. That instrument has been aptly termed a legislative act by the people themselves in their sovereign capacity, and is therefore the paramount law. Its object is not to grant legislative power, but to confine and restrain it. Without constitutional limitations, the power to make law would be absolute. These limitations are created and imposed by express words, or arise by necessary implication…. The executive can do no legislative act, nor the legislature any executive act, and neither can exercise judicial authority.

It does not follow, however, that in every case the courts, before they set aside a law as invalid, must be able to find in the constitution some specific inhibition which has been disregarded, or some express command which has been disobeyed.

Professor Cooley described certain rights as "fundamental," specifically noting "that all men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety and happiness." Likely, it is no coincidence that N.D. Const. art. I, § 1 identifies all of the natural and inalienable rights identified by Professor Cooley with the same language he used ….

Before he spoke to the [North Dakota] constitutional convention [the opinion includes more details on that speech -EV], Professor Cooley wrote in Constitutional Limitations it "is the peculiar province of the judicial department," as opposed to the legislature, "to adjudicate upon, and protect, the rights and interests of individual citizens, and to that end to construe and apply the laws." Shortly before the constitutional convention, the United States Supreme Court also discussed the duty of the judiciary in Boyd v. United States (1886), explaining courts must be "watchful for the constitutional rights of the citizen, and against any stealthy encroachment thereon." Courts, it explained, must liberally construe provisions protecting fundamental rights:

[C]onstitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance.

Based on this legal precedent, we can assume the drafters understood courts would construe broadly descriptions protecting life, liberty, and security of a person liberally. They nonetheless chose at the outset to enshrine broad guarantees of freedom in N.D. Const. art. I, § 1….

Our reading of the Constitution requires a recognition that the drafters did not set out to delineate in Article I, § 1 the specific rights it protects and to exclude others. Rather, the limitations placed on the legislature in Article I, § 1 arise by necessary implication. By its nature, the Constitution was meant to "define the limits" of the State's exercise of power "so as to protect individual rights, and shield them against the assumption of arbitrary power." The rights mentioned in Article I, § 1 are "among" those "certain inalienable rights" that "all individuals" possess "by nature." For example, the Constitution does not specifically identify a number of fundamental rights, and yet this Court has recognized the same. See Hoff v. Berg (N.D. 1999) (stating parents have a fundamental right to parent their children); State ex rel. Schuetzle v. Vogel (N.D. 1995) (recognizing liberty interest to refuse unwanted medical treatment); Johnson v. Elkin (N.D. 1978) (identifying liberty right to engage in ordinary occupation without state regulation).

While I agree, and have signed with the majority, I write separately to recognize analysis of the state constitution will not always parallel analysis of the federal constitution. In addition, while we have only narrowly considered the fundamental right to an abortion "at least in the limited instances of life-saving and health preserving circumstances," the district court is free to consider whether additional fundamental rights are implicated by the statute under N.D. Const. art. I, § 1, or any other constitutional provision. For example, while the parties have not addressed N.D. Const. art. I, § 25, which provides comprehensive constitutional rights for victims of crimes, the rights found therein may be implicated nonetheless by N.D.C.C. § 12.1-31-12.

A quick thought: The majority makes a powerful historical argument that North Dakota abortion law had long exempted abortions needed to preserve the woman's life; and I agree that the right to defend life should be read to encompass that. (Indeed, many state courts have read provisions such as North Dakota's to secure a right to defend life or, in some situations, even the right to defend property.)

But the purely historical argument doesn't seem to me to extend to a right to abortions that are needed merely to preserve health rather than to protect life; the sources the majority cites don't mention health. And of course one concern that many opponents of abortion have (I say this as not an opponent of abortion myself) is that a truly broad right to abortion to protect "health" could be turned into a right to abortion on demand, so long as the woman claims that the abortion threatens her mental health and a doctor agrees.

On the other hand, I think Justice Tufte's analogy to self-defense could be powerful here: Self-defense law, throughout the nation, has long recognized a right to use deadly force (even against nonculpable people who threaten it, such as the insane or people who are innocently mistaken) not just to protect life, but also to prevent serious bodily injury. That fits well with the constitutional recognition of a similar right to prevent death or serious bodily injury to the woman through an abortion.

Congratulations to Meetra Mehdizadeh, who argued the case on behalf of the challengers.

Thanks to Seth Thompson for the pointer.