Abortion rights advocates said it's a preview of things to come after lawmakers this session passed four laws that could make North Dakota the most difficult state in the country for abortions.
A judge said Thursday he plans to rule in favor of North Dakota's lone abortion clinic in its challenge to shoot down a 2011 state law that sought to limit the use of drugs to terminate pregnancies.
The lawsuit by the Red River Women's Clinic argued that outlawing one of two drugs used in medication abortions would in essence eliminate the procedure altogether and illegally restrict abortion rights. East Central Judge Wickham Corwin agreed.
"I am going to ultimately rule that all of the challenge provisions are unconstitutional," Corwin said at the close of a three-day civil trial. He added that the legislation was "simply wrongheaded."
Lawyers for the state said afterward they would appeal. Abortion rights advocates said it's a preview of things to come after lawmakers this session passed four laws that could make North Dakota the most difficult state in the country for abortions.
"My thoughts on that are that it's unfortunate that the Legislature seems to be treating women in North Dakota as second-class citizens and feels the need to deprive them of the rights that women in other states have," said attorney Autumn Katz of the New York-based Center for Reproductive Rights, which is representing the women's clinic. "As the judge said, these rights are fundamental rights, and they shouldn't have to keep going back to court to make sure those rights are protected."
Assistant Attorney General Doug Anderson, who tried the case for the state, said afterward he wasn't surprised about Corwin's opinion because of earlier statements by the judge about his struggles with the law.
"I think that he was just trying to fill in some gaps," Anderson said.
Attorney General Wayne Stenehjem said in a statement that the issue is "clearly of sufficient magnitude" and it should be decided by the state Supreme Court. Katz said her legal team is prepared for the case to go to higher courts.
"We feel that the evidence we presented made clear that the effect of House Bill 1297 would not be to protect women's health, but would harm women's health," Katz said.
Corwin, who earlier had blocked the law from taking effect, said he would issue a written opinion within 30 days.
"I remain convinced that a woman's reproductive rights must be protected under the state constitution and must be recognized as fundamental," he said before adjourning Thursday.
Medication abortions at the Red River Women's Clinic involve the use of a combination of two drugs, Mifeprex and misoprostol. The North Dakota law maintains that the use of any drug to cause an abortion must meet "the protocol tested and authorized" by the Food and Drug Administration and outlined on the drug's label. Misoprostol is not labeled as an abortion-inducing drug and therefore could not be used by the clinic.
Dr. Kathryn Eggleston, medical director of the clinic, testified earlier in the week that banning misoprostol is unprecedented and the clinic could not continue to perform medication abortions without it. She said using Mifeprex alone is not as effective, especially for women who are more than 50 days pregnant.
Dr. Donna Harrison, president the American Association of Pro-Life Obstetricians and Gynecologists, was the state's lone witness and testified Thursday that medication abortions are not as safe as surgical abortions. She cited a study that monitored women in Finland after they had abortions.
"This very accurate, large, registry-based study clearly shows that medical abortion has a higher overall risk of adverse events ... than surgical abortion," she said.
Janet Crepps, another Center for Reproductive Rights attorney, pointed out a section in the same study that said both medication and surgical abortions were generally safe.
"As I talked about in my affidavit in great length, 'safe' is a relative term," Harrison said. "There's no definition of the word 'safe' in that study."
Anderson said in his closing that he doesn't believe the law creates a "substantial obstacle." He said clinic officials were mainly complaining that it was inconvenient for them. The law does not fit the clinic's needs, he added.
"The North Dakota Legislature can't pass a law that fits a particular business' needs, whether it's an abortion clinic, whether it's a car dealership or whatever," Anderson said.
Tammi Kromenaker, director of the clinic, said afterward that she doesn't think the expected ruling will change momentum in the state's abortion debate.
"I think the court of public opinion has already shown that most people think that abortion should be safe and legal," she said. "So I don't think it's going to change anything."