North Dakota faults judge’s reasoning on abortion ban

FARGO, N.D. — The North Dakota attorney general’s office said Monday that a judge did not use a “rational mental process” when he determined there was a “substantial probability” that a constitutional challenge to the state’s abortion ban would succeed.

The state argued in a filing that South Central District Judge Bruce Romanick erred in blocking the ban from taking effect before a lawsuit by North Dakota’s lone abortion clinic is resolved. Attorneys for the Red River Women’s Clinic, which has already moved its services from Fargo to neighboring Moorhead, Minnesota, counter that Romanick properly considered the arguments and should not be overturned.

The state Supreme Court has scheduled oral arguments next week on whether Romanick’s preliminary injunction should remain in place.

Attorney General Drew Wrigley and his attorneys said in a 20-page opinion that Romanick made a mistake when he said there’s not a “clear and obvious” answer on whether the state Constitution prohibits abortion and that therefore the case should go forward. In order to determine that the outcome favors the clinic Romanick would have to first find that a constitutional right to abortion existed, Wrigley said.

“Such leaps in analysis do not appear to be the product of a rational mental process leading to a reasoned determination. The district court’s determination on this issue is diminished and unsupported by its own analysis and admission that the ‘answer to whether the Statute is constitutional is not obvious,’” the state wrote.

In the clinic’s 30-page filing, attorneys argue that Romanick was right to focus on the fact that although the ban allows cases of rape, incest or the life of the mother to be raised as affirmative defenses to administering abortions, doctors would first face felony charges and then have to plead their case. That puts unreasonable burdens on doctors and pregnant women, the judge said.

“Similarly, it is in the public interest to maintain the preliminary injunction while the case progresses,” the clinic’s attorneys wrote. “Keeping the preliminary injunction in place allows patients to continue to access emergency medical care within North Dakota; indeed, as the District Court recognized, if the Abortion Ban were to take effect, physicians may be chilled from performing abortions even in a life-threatening situation.”

Romanick last month rejected a request from Wrigley to let the law take effect while the lawsuit went forward. Wrigley argued that the judge had not sufficiently considered the clinic’s chances of prevailing in court. The state Supreme Court agreed and told Romanick to take another look.

Romanick stood his ground, saying the question on whether the state constitution “conveys a fundamental right to abortion is an issue that is very much alive and active.”

The lawsuit was filed by the clinic shortly after the U.S. Supreme Court overturned Roe v. Wade. More than a dozen states, including North Dakota, had passed so-called trigger laws that were designed to outlaw most abortions if the high court threw out the constitutional right to end a pregnancy.

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