Case: Access Independent Health Services, Inc. v. Wrigley

This case is about North Dakota's trigger ban, which criminalized nearly all abortions following the U.S. Supreme Court's decision in Dobbs. The Red River Women's Clinic, the only remaining abortion provider in North Dakota, and its medical director sought to block enforcement of the ban. 

The abortion ban in question is North Dakota Century Code Section 12.1-31-12 (page 8) (the “Abortion Ban”), which was enacted by the legislature and signed by the Governor during the 2007 legislative session as House Bill 1466 (“H.B. 1466”). On June 28, 2022, four days after Dobbs was decided, the North Dakota Attorney General ("Defendant") declared the trigger for H.B. 1466 satisfied. The AG planned for the ban to be in full effect one month later on July 28. However, the Plaintiffs argued that the original language of H.B. 1466 required a judgment to be issued, rather than a mere opinion, and sought a declaration of such with a corresponding injunction delaying the ban. Further, the Plaintiffs challenged the entirety of the abortion ban on state constitutional due process grounds and asked that North Dakota courts permanently enjoin it. Represented by the Center for Reproductive Rights and private counsel, Plaintiffs filed their complaint on July 6 in the South Central Judicial District of North Dakota, a state trial court.

Just a few weeks later, on July 27, 2022, Burleigh County District Judge Bruce Romanick granted Plaintiffs' motion for a temporary injunction, concluding that Defendant prematurely attempted to execute the triggering language, since the Supreme Court had not yet issued its judgment, as required by the Abortion Ban. The Court did not consider the merits of the state constitutional claims.

On August 25, 2022, Judge Romanick then granted a preliminary injunction. In this decision, the Court made no findings toward the substantial probability of success on the merits, reserving such analysis for a motion on summary judgment or a trial. Instead, the Court based its decision to grant the preliminary injunction on the fact that if the Abortion Ban went into effect, it would cause irreparable harm to North Dakotans that outweighed any harm that delaying its enforcement would have on the state. On September 23, Judge Romanick upheld the injunction, against the State's request to lift the stay.

On October 11, 2022 the North Dakota Supreme Court ordered Judge Romanick to weigh the clinic's chances of success and reconsider his earlier decision. On November 1, Judge Romanick again upheld the ban, concluding that the ban likely violated the state constitution because the trigger law would fail even rational basis review as it is not rationally related to North Dakota's stated goal of protecting human life, given that it increases risks for pregnant people.

Defendant argued that Judge Romanick improperly applied injunction standards and abused his discretion. Defendant also sought a supervisory writ—a supervisory writ is a purely discretionary procedural device used to correct errors and prevent injustices in unusual circumstances when no alternative would work—from the North Dakota Supreme Court. The Plaintiffs argued that a supervisory writ would not be appropriate, because Defendant had not produced evidence to demonstrate an immediate risk of harm. On November 29, 2022, the North Dakota Supreme Court heard oral arguments on the matter.

On March 13, 2023, the North Dakota Supreme Court, in an opinion authored by Chief Justice Jensen, denied Defendant's requested relief and upheld the preliminary injunction. The Supreme Court agreed with Defendant that it would have had jurisdiction to overturn the temporary injunction if it thought the argument for overturning had merit. However, the Supreme Court did not think the argument had merit, and instead sided with Plaintiffs in deciding that preliminary enjoining the Abortion Ban (a) posed no irreparable harm, (b) posed no sufficient harm to interested parties, (c) was in the public interest, and (d) consistent with the North Dakota Constitution's guarantee of a fundamental right to abortion.

The March 13 declaration of a fundamental right to abortion was significant, especially because no North Dakota court had decided this previously. To reach this conclusion, the North Dakota Supreme Court relied on other states' constitutions and court rulings, plus history and tradition. The decision was also significant because it meant abortion restrictions and bans would be subject to strict scrutiny, a more stringent standard than the deferential rational basis standard previously applied by Judge Romanick. Strict scrutiny is a standard that overturns most government policies interfering with constitutional rights. Therefore, the Supreme Court predicted, pending a future merits evidentiary record, that Defendant would not be able to pass strict scrutiny and would lose on the merits. Therefore, the North Dakota Supreme Court held that the preliminary injunction should stay in place. 2023 WL 2530340. 

As of April 5, 2023, the trial court docket has reflected no new activity since that March 13, 2023 judgment.