State asks judge to pause ruling that struck down North Dakota's abortion ban

BISMARCK, N.D. -- The state of North Dakota is asking a judge to pause his ruling from last week that struck down the state's abortion ban until the state Supreme Court rules on a planned appeal.

The state's motion to stay a pending appeal was filed Wednesday. State District Judge Bruce Romanick ruled last week that North Dakota's abortion ban “is unconstitutionally void for vagueness,” and that pregnant women in the state have a fundamental right to abortion before viability under the state constitution.

Attorneys for the state said “a stay is warranted until a decision and mandate has been issued by the North Dakota Supreme Court from the appeal that the State will be promptly pursuing. Simply, this case presents serious, difficult and new legal issues.”

In 2022, the U.S. Supreme Court overturned Roe v. Wade, which established a constitutional right to an abortion. Soon afterward, the only abortion clinic in North Dakota moved from Fargo to neighboring Moorhead, Minnesota, and challenged North Dakota's since-repealed trigger ban outlawing most abortions.

In 2023, North Dakota's Republican-controlled Legislature revised the state's abortion laws amid the ongoing lawsuit. The amended ban outlawed performance of all abortions as a felony crime but for procedures to prevent a pregnant woman's death or a “serious health risk” to her, and in cases of rape or incest but only up to six weeks. The law took effect in April 2023.

The Red River Women's Clinic, joined by several doctors, then challenged that law as unconstitutionally vague for doctors and its health exception as too narrow. In court in July, about a month before a scheduled trial, the state asked the judge to throw out the lawsuit, while the plaintiffs asked him to let the August trial proceed. He canceled the trial and later found the law unconstitutional, but has yet to issue a final judgment.

In an interview Tuesday, Center for Reproductive Rights Senior Counsel Marc Hearron said the plaintiffs would oppose any stay.

“Look, they don't have to appeal, and they also don't have to seek a stay because, like I said, this decision is not leading any time soon to clinics reopening across the state,” he said. “We're talking about standard-of-care, necessary, time-sensitive health care, abortion care generally provided in hospitals or by maternal-fetal medicine specialists, and for the state to seek a stay or to appeal a ruling that allows those physicians just to practice medicine I think is shameful.”

Republican state Sen. Janne Myrdal, who introduced the 2023 bill, said she's confident the state Supreme Court will overturn the judge's ruling. She called the decision one of the poorest legal decisions she has read.

“I challenge anybody to go through his opinion and find anything but ‘personal opinions,’” she said Monday.

In his ruling, Romanick said, “The Court is left to craft findings and conclusions on an issue of vital public importance when the longstanding precedent on that issue no longer exists federally, and much of the North Dakota precedent on that issue relied on the federal precedent now upended — with relatively no idea how the appellate court in this state will address the issue.”