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Port: Abortion ban injunction is an egregious act of judicial activism and the judge ought to be recalled

This isn't about Romanick's views on abortion, though they are palpable at this point. This is about his inability to recognize the limits of the judicial branch's powers.

South Central District Judge Bruce Romanick during a hearing at the Morton County Courthouse in Mandan on Monday, March 19, 2018. Mike McCleary / Bismarck Tribune
Public defender attorney Erica Woehl is handed a sentencing order for a client from South Central District Judge Bruce Romanick during a hearing at the Morton County Courthouse in Mandan on Monday, March 19.
Mike McCleary / Bismarck Tribune
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Minot, N.D. — I'm probably spitting in the wind on this one, because everyone who has an opinion on District Court Judge Bruce Romanick's decision to keep in place an injunction blocking North Dakota's abortion ban is going to filter it through their existing abortion opinions.

Pro-choice people are going to like his position, because they don't want the ban to take effect. And vice versa for the pro-life folks.

But, for a moment, try to suspend your opinions about abortion (personally, I'd prefer we keep it legal before about 15 weeks) and consider Romanick's decision from a legal perspective.

Currently, in North Dakota, there is not one paragraph, sentence, word, or syllable written into our state constitution with the intention of creating a right to abortion. Nor is there any precedent, set by our state courts, reading such a right into the penumbras of our state's founding document.

To the extent that there is jurisprudence in North Dakota that has recognized the right to an abortion, it has been built on federal precedent — Roe vs. Wade, primarily — which the U.S. Supreme Court has struck down.

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Yet, absent that, Romanick has upheld his injunction, arguing that because neither the legislature nor the people have created a right to abortion in the state constitution, and because the courts haven't ruled that there is a right to an abortion in the constitution, that the pro-choice activists who are challenging the near-total statutory ban on abortion — legislation that was introduced by Democrats and passed by a bipartisan majority — will likely succeed.

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"We're still left with many questions," Port writes.

Don't take my word for it.

Here's what Romanick himself argued :

"Whether the North Dakota Constitution conveys a fundamental right to an abortion is an issue that is very much alive and active," Romanick wrote. "This issue does not have a clear and obvious answer. Therefore, the Court finds that (the Red River Women's Clinic) has a substantial probability of succeeding on the merits through showing that there is a 'real and substantial question' before the Court."

Romanick had already been walking a fine line with his previous obstructions of state law. The state Supreme Court found that Romanick had made "a clear error of law" in his previous ruling, and asked him to reconsider.

This new, specious reasoning, which runs afoul of the separation of powers between the legislative and judicial branches, is Romanick's reconsideration.

It's absolute bunk.

There is no right to an abortion in North Dakota. The people have not created one in the law, and even if we accept that it's somehow the judiciary's role to manufacture, through judicial fiat, rights the people have not weighed in on (it's not, which is why Roe was overturned) the courts haven't done that either.

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Again, set aside your feelings on whether abortion ought to be legal, and consider the fundamentals of how our government is supposed to work.

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Demonstrators hold signs outside the U.S. Supreme Court as the court is due to issue its first major abortion ruling since 2007 against a backdrop of unremitting divisions among Americans on the issue and a decades-long decline in the rate at which women terminate pregnancies in Washington, U.S. June 27, 2016. REUTERS/Kevin Lamarque

The legislature, and/or the people, write the laws. The courts do not. And yet here we have Judge Romanick blocking a law that was passed through the legislative process, by the elected representatives of the people, and signed into law by the governor, because he assumes at some point the courts will go around to creating a right to an abortion in the state's constitution.

That is not the reasoning of someone who is fit to sit on North Dakota's bench.

Romanick was last elected to a six-year term in 2018. He's on the ballot again in 2024, but he shouldn't be allowed to serve that long.

I hope there are activists who will consider recalling him to the ballot, both as a reaction to his handling of this case, which is clearly being driven by ideology and not the law, and as a message to other judges.

This isn't about Romanick's views on abortion, though they are palpable at this point. This is about his inability to recognize the limits of the judicial branch's powers.

It shouldn't matter what your view on abortion is. Laws should be created by the people, or their lawmakers, and not judges.

Opinion by Rob Port
Rob Port is a news reporter, columnist, and podcast host for the Forum News Service. He has an extensive background in investigations and public records. He has covered political events in North Dakota and the upper Midwest for two decades. Reach him at rport@forumcomm.com. Click here to subscribe to his Plain Talk podcast.
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