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With dormant ND law, both sides of abortion debate eyeing Supreme Court vacancy

Visitors stand outside the U.S. Supreme Court in Washington on Feb. 27, 2018. Bloomberg photo by Ron Antonelli.

BISMARCK — With President Donald Trump preparing to name his second nominee to the nation's highest court, North Dakota may look to dust off an 11-year-old law banning most abortions.

Officials on both sides of the abortion debate see Justice Anthony Kennedy's retirement as an opportunity for Trump to solidify a conservative majority on the U.S. Supreme Court that could undercut Roe v. Wade, the 1973 decision legalizing abortion nationwide.

"I think that this is the best chance that we have, as pro-lifers, to get Roe v. Wade overturned," said Medora Nagle, executive director of North Dakota Right to Life.

North Dakota lawmakers appeared to prepare for that scenario in 2007, when they passed legislation making it a Class C felony to perform an abortion. The law allows for several "affirmative defenses," including that the abortion was needed to save the mother's life or that the pregnancy resulted from rape or incest.

But the law, signed by then-Gov. John Hoeven, has never gone into effect. That would happen once a legislative committee approves the attorney general's recommendation that it's "reasonably probable" the law would pass constitutional scrutiny.

Christopher Dodson, executive director of the North Dakota Catholic Conference, said the law's effective date was meant to be "flexible."

"It doesn't need to be a reversal of Roe," he said. "Ultimately, constitutionality has to do with, is the law enforceable?"

Republican Attorney General Wayne Stenehjem's spokeswoman, Liz Brocker, said in an email that "nothing yet has changed the status quo." Senate Majority Leader Rich Wardner, R-Dickinson, said the issue wasn't yet on his radar.

North Dakota is one of four states with laws that would automatically ban at least some abortions if the Roe v. Wade decision is overturned, the Washington Post reported this week. That list also includes South Dakota.

The head of Planned Parenthood Minnesota, North Dakota, South Dakota sounded the alarm, declaring that "the right to access abortion safely and legally in this country is on the line" and pointing to dormant laws like North Dakota's.

"If the makeup of the court changes too radically, and a case makes its way and Roe falls, women in North Dakota will not have the same rights as women in neighboring states," said Tammi Kromenaker, director of the Red River Women's Clinic in Fargo. "Your reproductive rights should not depend on your zip code."

'A fair hearing'

The quest to replace Kennedy has also thrown a new theme into the U.S. Senate race between incumbent Democratic Sen. Heidi Heitkamp and Republican Rep. Kevin Cramer.

Heitkamp, one of three Democrats to break ranks and vote in favor of Trump's first Supreme Court pick, Neil Gorsuch, said Thursday the next justice should be a "highly qualified" person who "has integrity, who is honest, who is willing to put aside personal ideology and philosophy and apply the law accordingly."

"I think you want somebody who appreciates precedent," Heitkamp said.

While he doesn't have a say in the pick outside the Senate, Cramer said he'd examine a potential justice's experience, philosophy and demeanor and would be less interested in their opinion on specific cases. Cramer, a Trump ally, said those factors would weigh on his mind more than his relationship with the president.

"I would never say I'd never vote against one of his nominees," he said.

At the same time, Cramer said it will be hard for Heitkamp to vote against Trump's pick, "short of Homer Simpson," amid a re-election bid in a solidly red state. Heitkamp was among a bipartisan group of senators who met with Trump about the vacancy last week at the White House.

"The best thing that I can do is my job, which is to give someone a fair hearing, to not put artificial limitations on people and to understand that precedent matters but elections have consequences," Heitkamp said.

Hoeven, now a Republican U.S. senator, is looking for a nominee who "follows the model of Justice Neil Gorsuch — a strict constructionist with a strong record of upholding the law," his office said in a statement.

"The senator doesn't believe in using litmus tests but wants a nominee who adheres to the Constitution," it added.

John Hageman

John Hageman covers North Dakota politics from the Forum News Service bureau in Bismarck. He attended the University of Minnesota in the Twin Cities, where he studied journalism and political science, and he previously worked at the Grand Forks Herald and Bemidji Pioneer.  

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