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

On June 28, 2022, four days after the U.S. Supreme Court decided Dobbs, the North Dakota Attorney General certified two state laws that banned nearly all abortions. These laws, N.D.C.C. § 12.1-31-12 and § 14-02.1-04.2, were originally enacted by the state legislature in 2007 under House Bill 1466 (“H.B. 1466” or "Abortion Ban"). Believing that Dobbs satisfied H.B. 1466’s trigger, the Attorney General declared that the ban would take effect one month later on July 28.

In response, 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. Plaintiffs brought two claims in their July 6 complaint: First, Plaintiffs challenged the entirety of the abortion ban on state constitutional due progress grounds. Second Plaintiffs argued that the Attorney General did not have the legal authority to certify that Dobbs had triggered the effective date of North Dakota’s abortion ban because the Supreme Court had not yet formally issued a certified judgment. Plaintiffs sought declaratory and injunctive relief and were represented by the Center for Reproductive Rights and private counsel. The complaint was filed in the South Central Judicial District of North Carolina.

Just a few weeks later, on July 27, 2022, Burleigh County District Judge Bruce Romanick granted Plaintiffs' motion for a temporary injunction, concluding that the Attorney General had prematurely attempted to execute the triggering language since the Supreme Court had not yet issued its judgment, as required by the Abortion Ban. That is, the Attorney General’s certification was improper until the Supreme Court issued its certified judgment on July 26, 2022. 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. Acknowledging that the clinic had set up a facility across the border in Minnesota in anticipation of being forced to shut down in North Dakota once the law took effect, Judge Romanick stated that the abortion ban would nevertheless “implicate others, including physicians at regional hospitals if it were to go into effect.” 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.

Following this decision, the Attorney General 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. 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 16, 2023, the North Dakota Supreme Court, in an opinion authored by Chief Justice Jensen, denied the Attorney General's requested relief and upheld the preliminary injunction. 988 N.W.2d 231. 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 16 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 the Abortion Ban 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.

In April 2023, North Dakota Governor Doug Burgum signed into law a near-total abortion ban. Senate Bill 2150 (“S.B. 2150”) replaced the state’s trigger ban and outlined narrow exceptions, including cases of ectopic or molar pregnancy, cases where the life of the mother is endangered, and cases where a pregnancy that results from rape or incest is discovered in the first six weeks of pregnancy. In response, Plaintiffs requested leave to file an amended complaint on June 12, 2023, alleging that the new ban still violated the North Dakota Constitution. Specifically, Plaintiffs alleged that S.B. 2150 violated due process, was void for vagueness, and violated their patients’ rights to life and safety. The court granted the motion, and the amended complaint was filed on August 15, 2023. Through the amended complaint, several physicians licensed in obstetrics, gynecology and maternal-fetal medicine joined the lawsuit as plaintiffs.

On November 21, 2023, Plaintiffs filed a motion for preliminary injunction, seeking to prohibit enforcement of the abortion ban against physicians who exercised their good-faith medical judgment in performing an abortion to preserve a pregnant person's life or health. The statute contained an exception in the case of a physician's reasonable medical judgment.

The next month, on December 20, a hearing was held before the trial court on Plaintiffs' motion, and, on January 23, 2024, Judge Romanick denied the motion. Noting that Plaintiffs' request was unusual, in that it requested the enjoinment of the statute only in certain circumstances, Judge Romanick found Plaintiffs had offered no legal authority that would grant the court authority to alter the abortion ban's exception from "reasonable medical judgment" to "good faith medical judgment." 

On June 17, 2024, Defendants filed a motion for summary judgment and a hearing was held on the motion on July 23, 2024.

A trial had previously been scheduled for August 26-30, 2024. On July 29, 2024, Judge Romanick cancelled the trial. 

On September 12, 2024 Judge Romanick denied Defendants' motion for summary judgment and held not only was the ban unconstitutionally vague, the North Dakota constitution creates a fundamental right to access abortion before viability.

Concerning the ban, Judge Romanick identified two parts of the statute that made it unconstitutionally vague. First, the medical exemption in the statute contained both objective and subjective elements: respectively, the abortion had be deemed necessary based on "reasonable medical judgement" and be  "intended to prevent death or a serious health risk to the pregnant female." Judge Romanick held that this made it impossible for a physician to know under which standard her conduct would be judged, thus violating due process rights. Secondly, the ban had an exception for rape or abuse, if the physician determined based on reasonable medical judgment that rape, abuse or incest had occurred. Judge Romanick held that physicians had no way to accurately determine whether such crimes had occurred and, again, would be forced to guess whether the exception applied. 

Next, Judge Romanick held article 1, section 1 of the state constitution guarantees individuals the fundamental rights to make medical judgments about their bodily integrity, health and autonomy, without government interference. This includes protecting a person's right to get a pre-viability abortion. 

As of September 12, 2024, the case is ongoing.