Wrigley v. Romanick 2023 ND 50 (March 16, 2023)
The North Dakota Legislature enacted North Dakota Century Code § 12.1-31-12 in 2007. The enactment statute included recognition of existing United States Supreme Court precedent limiting individual state authority to regulate abortion. After the Supreme Court overturned Roe v. Wade in the case entitled Dobbs v. Jackson in June of 2022, North Dakota began the process of enforcing N.D.C.C. § 12.1-31-12, commonly known as a “trigger ban”.
The statute makes it a Class C felony to perform an abortion in North Dakota but does provide for an affirmative defense if the abortion was necessary to save the life of the pregnant woman, or if the pregnancy occurred from gross sexual imposition. At the request of the Red River Women’s Clinic (hereinafter referred to as “RRWC”), the District Court in Access Indep. Health Servs., Inc., et al. v. Drew H. Wrigley, et al., granted the RRWC’s motion for a temporary restraining order and preliminary injunction of the statute.
The State of North Dakota appealed and argued that the District Court abused its discretion in granting the preliminary injunction because RRWC and other plaintiffs failed to prove (1) they have a substantial likelihood of success on the merits, (2) they will suffer irreparable injury, (3) there will be harm to other interested parties, and (4) the effect on the public interest weighs in favor of granting a preliminary injunction.
The State asked the Supreme Court of North Dakota to exercise supervisory jurisdiction and require the District Court to vacate the preliminary injunction, arguing that the District Court failed to determine if RRWC had a substantial likelihood of success on the merits. The high Court asked the District Court to reconsider this question, and the District Court found that RRWC had a substantial likelihood of prevailing on the merits of the litigation.
ISSUES ON APPEAL
Whether the North Dakota Supreme Court should decline to exercise its supervisory jurisdiction because the issue does not constitute the sort of extraordinary case where the Court’s intervention would be necessary.
Whether RRWC has established the elements necessary for the Court to enter a preliminary injunction (substantial probability of success on the merits, irreparable injury, harm to other interested parties, and effect on the public interest).
Whether the North Dakota Constitution affords a woman a fundamental right to an abortion to protect her health.
The North Dakota Supreme Court found that RRWC demonstrated the likelihood of success on the merits that a pregnant woman has a fundamental right to an abortion in the limited instances of life-saving and health-preserving circumstances, and the statute is not narrowly tailored to satisfy strict scrutiny. The Supreme Court held that the District Court did not abuse its discretion in granting the preliminary injunction.
Under State v. Paulson, the Court “determines when to exercise supervisory jurisdiction on a case-by-case basis, considering the unique circumstances of each case”. “Exercise of supervisory jurisdiction may be warranted when issues of vital concern regarding matters of important public interest are presented.” Considering the recent overturning of Roe v. Wade, the extent to which a state legislature may regulate abortions is an issue of vital concern regarding a matter of important public interest. The Court chose to exercise their discretion to review whether the District Court abused its discretion in issuing a preliminary injunction, considering the extraordinary circumstances.
Elements Necessary for a Preliminary Injunction.
For a preliminary injunction to be granted, four factors must be considered, which include a substantial probability of succeeding on the merits, irreparable injury to a party, irreparable harm to other interested parties, and the effect on the public interest. The Court generally deems it to be a drastic remedy.
Success on Merits/Fundamental Rights.
RRWC argued that it had a substantial likelihood of succeeding on the merits of the underlying lawsuit due to a woman’s fundamental right to have an abortion under the North Dakota Constitution. RRWC specifically argued Section 1 and 12 of the North Dakota Constitution provide for a fundamental right to receive an abortion. Section 1 states that “All individuals…have certain inalienable rights, among which are those of enjoying and defending life and liberty.” Section 12 states that “No person shall be…deprived of life, liberty or property without due process of the law.” The State argued that there is no fundamental right to an abortion in North Dakota, because it does not have longstanding roots in American or North Dakota culture.
The Court therefore needed to determine if a pregnant woman had a fundamental right to an abortion, because if such a right existed, it would demand a strict scrutiny analysis of the statute versus a rational basis analysis. The Court, in the past, has struggled to decide if there is a fundamental right (MKB Mgmt. Corp., 2014 ND 197 ¶ 1). The Court cited the fact however that many other states have found a fundamental right to an abortion in various sections of their constitutions.
The Court held that RRWC does have a substantial likelihood of establishing that there is a fundamental right for a woman to obtain an abortion in instances where necessary to preserve her life or health (statute in question only provides affirmative defense for life). The Court noted Section 1’s guarantee of the right to enjoy and defend life and to pursue safety implicitly include the right to obtain an abortion to preserve the woman’s life or health. North Dakota has a long history of permitting women to obtain abortions to preserve their life or health. Prior to and after statehood, abortion was criminalized, but allowed for them to protect life of women. Shortly after statehood, medical journals were published which indicated it was common knowledge that an abortion could be performed to preserve the life or health of the woman. The Legislature enacted and affirmed laws which always provided an exception (in contrast to an affirmative defense) to preserve the life of the woman up until it enacted 2007 N.D.C.C. §12.1-31-12 as a trigger law.
“North Dakota has a longstanding history of allowing pregnant women to receive an abortion to preserve her life or health...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”. “Fundamental rights are those deeply rooted in history and tradition and are implicit in the concept of ordered liberty…it is clear that the citizens of North Dakota have a right to enjoy and defend life and a right to pursue and obtain safety, which necessarily includes a pregnant woman’s fundamental right to obtain an abortion to preserve her life or her health.”
With the North Dakota Supreme Court finding a woman’s right to an abortion to be a fundamental right to preserve her life or health, it requires a strict scrutiny analysis. To conduct this analysis, the Court asked whether there was a compelling government interest to restrict abortion and whether the statute was narrowly tailored to serve only that interest. The State argued that there is a compelling government interest in protecting women’s health and unborn human life. RRWC did not challenge this assertion but did challenge the statute on overbreadth grounds. The RRWC argued that N.D.C.C. §12.1-31-12 had not been narrowly tailored, because it would unnecessarily restrict access to abortions to preserve life or health. The statute criminalized abortion even if to preserve the life or health of the woman, and physicians would need to prove the necessity to preserve the life of the woman. Preserving the woman’s health was not an affirmative defense. Further, the statute did not include an exception for an ectopic pregnancy.
The North Dakota Supreme Court agreed with the RRWC. “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 Court found N.D.C.C. §12.1-31-12 to be unconstitutional, that and RRWC had a substantial likelihood of succeeding on the merits.
RRWC argued that their clients would suffer irreparable injury from the inability to perform life-saving or injury avoiding abortions. The State argued that there would be an irreparable injury of the loss of human life. The Court found that these injuries balance, so they left the District Court’s decision in favor of RRWC’s harm in place so as to not abuse their discretion.
Irreparable Injury to Other Parties.
RRWC argued that there would be irreparable injury to other parties because the women of North Dakota would face grave harm without access to life-saving and health-preserving abortions. The State argued that the people of North Dakota have an interest in the legislation being enforced. The District Court found RRWC’s argument more persuasive, because §12.1-31-12 has been “lying dormant” for nearly 15 years and the State failed to show how an additional delay would greatly harm any other interested parties. Therefore, the high Court affirmed that RRWC had established this element.
Effect on Public Interest.
The purpose of a preliminary injunction is to maintain the status quo during the pendency of litigation. At this time, the status quo in North Dakota is to not restrict or limit abortions in the manner provided by in N.D.C.C. §12.1-31-12. Therefore, the District Court decided to maintain the status quo until a trial on the merits, and the high Court agreed.