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Questions about North Dakota's abortion laws emerge as ban looms

With the ban looming, some lawmakers and attorneys are raising concerns about small inconsistencies within the state’s abortion laws that they believe could make a big difference to medical providers trying to treat pregnant patients without stepping on legal landmines.

Wide view of the abortion clinic in Fargo with protesters and clinic escorts out front
Anti-abortion protesters and patient escorts stand in front of the Red River Women's Clinic on Wednesday, June 29, 2022, in downtown Fargo.
C.S. Hagen / The Forum
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BISMARCK — When North Dakota lawmakers passed a bill in 2007 that would ban abortion in the state if Roe v. Wade were overturned, they may not have thought their conditional legislation would become enforceable law.

But following the U.S. Supreme Court’s seismic decision to reverse Roe last month, the so-called “trigger” law will take effect July 28, and abortion will be outlawed in North Dakota except in rare cases.

The one-page trigger law banning abortion is far from the only abortion-related statute on North Dakota’s books. Over the years, socially conservative legislators have added several sections to state law that regulate and restrict the controversial procedure.

With the ban looming, some lawmakers and attorneys are raising concerns about small inconsistencies within the state’s abortion laws that they believe could make a big difference to medical providers trying to treat pregnant patients without stepping on legal landmines.

Fargo Rep. Karla Rose Hanson, a pro-abortion-rights Democrat, worries about doctors having to think twice before providing medical care to a patient suffering from an ectopic pregnancy — a potentially life-threatening condition occurring in about 2% of pregnancies in which a fertilized egg implants outside of a woman’s uterus. Ectopic pregnancies are never viable.

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Karla Rose Hanson
North Dakota Rep. Karla Rose Hanson, D-Fargo

The trigger law does not include an exception to the abortion ban for doctors treating ectopic pregnancies. However, it offers medical professionals an “affirmative defense” for acting in their best professional judgment, meaning a doctor could still be charged with a Class C felony for violating the law but would have a defense in court that could negate criminal liability.

A separate chapter of state law called the Abortion Control Act makes an explicit exception for ectopic pregnancies. Hanson believes the ambiguity and discrepancies could generate confusion.

“I wouldn’t want a doctor to hesitate when a woman’s life or health is in danger, but it might happen,” she said.

Attorney General Drew Wrigley deferred most questions about the application of the abortion ban to county prosecutors who are charged with enforcing the law, but he told Forum News Service the Abortion Control Act’s carveout for ectopic pregnancies “controls” in this case.

Cass County State’s Attorney Birch Burdick did not respond to a request for comment.

Christopher Dodson, an attorney who works as the director of North Dakota Catholic Conference, said there is not any legal ambiguity for doctors treating ectopic pregnancies, and it was not the intent of lawmakers to sow any doubt on the subject.

He added that the abortion ban clearly does not prohibit the sale or use of emergency contraceptives, commonly referred to as “the morning-after pill.”

Though he does not see a need to further clarify the law on treating ectopic pregnancies, Dodson said he would not object to the Legislature making it more explicit.

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Melissa Hauer, an attorney with the North Dakota Hospital Association, said she has not heard from hospitals about concerns over ectopic pregnancies, but she has identified a few potentially troubling inconsistencies in the state’s abortion laws.

The trigger law contains affirmative defenses for medical professionals who perform an abortion in cases of rape and incest, but the Abortion Control Act does not mention rape or incest.

Since it is unclear which law takes precedence, Hauer said, it’s uncertain how the rape or incest defense would be interpreted by a prosecutor.

Hauer said hospitals are also questioning whether the state’s abortion laws affect the treatment of pregnant patients in emergency situations when a pregnant patient and a fetus have “competing medical concerns.”

The Abortion Control Act allows medical personnel to perform abortions if they deem a pregnant patient to be at “serious risk of substantial and irreversible impairment.” The trigger law does not have a similar clause and only provides an affirmative defense to doctors who perform an abortion to “prevent the death of the pregnant female.”

Federal law requires hospitals to stabilize anyone who comes in needing emergency care, but Hauer wonders if the trigger law will mean medical staff have an obligation to save a fetus’s life even if the pregnant patient is at risk of significant harm.

Hauer hopes officials will identify and resolve the inconsistencies in the state’s soon-to-be-active abortion laws to ensure “everyone understands in which situations an abortion will be allowed.”

Jeremy Turley is a Bismarck-based reporter for Forum News Service, which provides news coverage to publications owned by Forum Communications Company.
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