Abortion Bans

NEAR-TOTAL WITH DELAYED EFFECTIVE DATE ("TRIGGER" BAN)

In 2007, North Dakota enacted a near-total ban on abortion, to become effective if the Supreme Court overturns Roe v. Wade.  The ban prohibits the use of any "substance, device, instrument, medicine, or drug" with the intent to procure an abortion, unless the performance of an abortion is necessary to preserve the woman's life or the pregnancy is caused by rape or incest.  A person who performs a prohibited abortion could be imprisoned for up to five years.  H.B. 1466, 60th Leg. Assem., Reg. Sess. (N.D. 2007) (to be codified at N.D. Cent. Code § 12.1-31).

AFTER 12 WEEKS

North Dakota's unconstitutional and unenforceable ban outlaws abortions performed as early as twelve weeks.  N.D. Cent. Code §§ 14-02.6-01 to -03 (Enacted 1999).

North Dakota's ban is unconstitutional according to the U.S. Supreme Court's decision in Stenberg v. Carhart, 530 U.S. 914 (2000).  In Stenberg, the Court held that a similar ban, which lacked an exception to protect a woman's health and was written so broadly as to ban more than one procedure, placed an undue burden on a woman's right to choose.

North Dakota's unconstitutional law makes the performance of any abortion procedure that falls within a broad definition a felony unless:  (1) in the physician's medical judgment, the measures are necessary to preserve the life of a woman endangered by a physical disorder, illness, or injury; (2) every reasonable precaution is taken to preserve the fetus's life; and (3) the physician first certifies in writing the facts relied upon in making the judgment that such measures are necessary.  This law does not apply to a sharp curettage or suction curettage abortion.  N.D. Cent. Code §§ 14-02.6-01 to -03 (Enacted 1999).

There is also a Federal Abortion Ban, which applies nationwide regardless of state law.  The federal ban prohibits the performance of certain second trimester abortions and does not contain an exception for a woman's health.  In April 2007, the U.S. Supreme Court upheld the ban, making it the first time since Roe v. Wade that the Court has upheld a ban on a previability abortion procedure.  Click here to read more about the Federal Abortion Ban.

Biased Counseling & Mandatory Delay

A woman may not obtain an abortion until at least 24 hours after the attending physician, referring physician, or physician's agent tells her:  (1) the medical risks associated with the proposed abortion procedure including, when medically accurate, infection, hemorrhage, danger to subsequent pregnancies, and infertility; (2) the medical risks associated with continuing the pregnancy to term; (3) the probable gestational age of the "unborn child"; (4) the name of the physician who will provide the abortion; and (5) the abortion will end "the life of a whole, separate, unique, living human being;".

In addition, at least 24 hours prior to an abortion, the physician or physician's agent must inform her:  (1) that medical assistance benefits may be available for prenatal care, childbirth, and neonatal care; (2) that the "father" is liable for child support, even if he offered to pay for the abortion; and (3) that she has a right to review state-prepared materials that describe the "unborn child" and list agencies that offer alternatives to abortion.  The physician or physician's agent must orally inform the woman about the materials.

The state-prepared materials must be available on the state department of health's website and must describe with pictures, in booklet format, the probable anatomical and physiological characteristics of the fetus at two-week gestational increments, including the possibility of survival. The majority of the pictures must be full-color photograph-style images, and the pictures must contain the dimensions of the fetus and be realistic and appropriate for the stage of pregnancy depicted. The state-prepared materials also must provide a geographically indexed comprehensive list of public and private agencies and services, including adoption agencies, available to assist the woman through pregnancy, upon childbirth, and while the child is dependent or include a 24-hour toll-free hotline that may be called to obtain such a list.

N.D. Cent. Code §§14-02.1-03(1) (Enacted 1975; Last Amended 1999), 14-02.1-02 (Enacted 1975; Last Amended 2009), 14-02.1-02.1 (Enacted 1991; Last Amended 2001).

A court has interpreted this law to permit information to be delivered by telephone so that no more than one visit is required.  Fargo Women's Health Org. v. Schafer, 18 F.3d 526 (8th Cir. 1994).

The state-prepared materials include enlarged color photographs of fetuses. Fetal Growth And Development (1995) (reproduced by N.D. Dep't of Health).

Counseling Ban/Gag Rule

North Dakota has an invalid and unenforceable law that provides that no state, county, or municipality funds or federal funds passing through the state may be used as family-planning funds by any person or public or private agency that refers for abortion.  N.D. Cent. Code § 14-02.3-02 (Enacted 1979).

A court has invalidated this provision.  Valley Family Planning v. North Dakota, 661 F.2d 99 (8th Cir. 1981).

No funds, grants, gifts, or services of an organization receiving funds distributed by the Children's Services Coordinating Committee, which assists abused, neglected, emotionally disturbed, homeless, or other children in need, may be used for abortion referrals, contraceptive services, or abortion care to minors.  N.D. Cent. Code § 54-56-03 (Enacted 1989; Last Amended 2005).

Insurance Prohibition for Abortion

Health insurance contracts, plans, or policies delivered or issued for delivery in the state must exclude coverage for abortion unless the procedure is necessary to preserve the woman's life.  Coverage may be obtained only by an optional rider for which an additional premium must be paid.  N.D. Cent. Code § 14-02.3-03 (Enacted 1979).

Other Anti-Choice Law

"The purpose of [the Abortion Control Act] is to protect unborn human life and maternal health within present constitutional limits. It reaffirms the tradition of the state of North Dakota to protect every human life whether unborn or aged, healthy or sick."  N.D. Cent. Code § 14-02.1-01 (Enacted 1975).

Public Facilities Restriction

A woman may not obtain an abortion in a hospital owned, maintained, or operated by the state or any of its agencies or subdivisions unless the procedure is necessary to preserve her life. N.D. Cent. Code § 14-02.3-04 (Enacted 1979).

Refusal to Provide Medical Services

ABORTION REFUSAL CLAUSE

North Dakota allows certain individuals or entities to refuse to provide abortion services.

To whom does the refusal clause apply? Individuals, hospitals, physicians, nurses, and hospital employees.

What does the refusal clause allow? No hospital, physician, nurse, hospital employee, or any other person is under any duty by law or contract to participate in an abortion, and no hospital or person who objects may be required to participate. The refusal to participate may not be a basis for discrimination.

Does the law require the refusing entity to notify the persons affected? No.

Are there circumstances under which a refusal clause may not be exercised? No.

Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for abortion services? No.

Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause? No.

Restrictions on Low-Income Women's Access to Abortion

North Dakota prohibits public funding for abortion for women eligible for state medical assistance for general health care unless the procedure is necessary to preserve the woman's life or the pregnancy is the result of rape or incest.  N.D. Admin. Code § 75-02-02-08(2)(g).

An invalid and enjoined statute prohibits funding for abortion unless the procedure is necessary to preserve the woman's life.  N.D. Cent. Code § 14-02.3-01 (Enacted 1979).

Restrictions on Young Women's Access to Abortion

North Dakota law restricts young women's access to abortion.

Is the law enforceable?  Yes.

Who is considered a minor?  A young woman under the age of 18 who is not married.

What is required - parental consent or parental notice?  Consent.

Who must provide consent?  Both parents.

Are there other trusted adults who may provide consent instead?  No.

What is the process for obtaining consent?  A young woman may not obtain an abortion unless the attending physician secures the written consent of both parents.  However, if one parent is dead, consent from the living parent is sufficient, and if the parents are divorced or separated, consent from the custodial parent is sufficient.

Another earlier law requires the attending physician to certify in writing 24 hours before the young woman consents to the abortion that he has personally provided to both parents information concerning the fetus and a list of public and private agencies and services available to assist her. If these materials are provided to the parents by certified mail they must be provided 48 hours before the young woman consents to the abortion.

May the parental mandate be waived if a young woman is a victim of rape or incest?  No.

May the parental mandate be waived if a young woman is a victim of child abuse?  No.

May the parental mandate be waived if a young woman's health is threatened?  No, not according to the most recently enacted law.  However, the health exception portion of this earlier law was never explicitly invalidated.  Under the earlier law, before the fetus is viable, the attending physician may perform the abortion without parental consent if the physician certifies in writing that a medical emergency exists for the young woman, and therefore "an abortion is necessary to avert her death or for which a twenty-four-hour delay will create grave peril of immediate and irreversible loss of major bodily function."  After the fetus has reached viability, the parental consent mandate may be waived if "the continuation of [the minor's] pregnancy will impose on her a substantial risk of grave impairment of her physical or mental health."  It is not clear how a court would interpret this issue:  whether the medical emergency provision from the older law would be enforceable or whether the newer law's exclusion of a similar provision effectively repealed the older law's provision.

May the parental mandate be waived under any other circumstances?  Yes, the young woman may try to obtain permission from a judge.

If a young woman must obtain permission from a judge, what is the process?  She must secure a court order stating either that she is sufficiently mature and well informed concerning the alternatives of childbirth and abortion and without the need for further information, advice, or counseling or that parental notice is not in her best interests and an abortion is in her best interests.  If a court finds that the young woman is mature but not sufficiently informed, he may issue an order to provide her with any necessary information to assist her in making her decision.  If a court finds that the young woman is not sufficiently mature and well informed, the court may issue an order to her parents calling them to a hearing to advise and counsel the young woman in her decision and aid the court in making its determination.

Are there other significant requirements under the law?  No.

Has a court considered the constitutionality of this law?  The newer law has not been considered by a court.  Portions of North Dakota's earlier parental notification statute have been considered by a court and are unconstitutional and unenforceable.  This is because the older law does not protect throughout pregnancy the constitutional right of a minor to have an abortion without parental consent if she is mature enough to make her own decision or an abortion is in her best interests.  N.D. Cent. Code §14-02.1-03 (Enacted 1976; Last Amended 1991); see Bellotti v. Baird, 443 U.S. 622, 647-48 (1979).

Other information about the law:  None.

Spousal Consent

The U.S. Supreme Court held that requiring a woman to obtain her husband's consent prior to an abortion is unconstitutional. Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 67-72 (1976). Yet, North Dakota has not repealed its unconstitutional and therefore unenforceable law that provides that a married woman may not obtain an abortion after the fetus may reasonably be expected to have reached viability without her husband's written consent unless: (1) the abortion is necessary to preserve the woman's life; (2) continuation of the pregnancy would impose a "substantial risk of grave impairment" to her physical or mental health; or (3) her husband is voluntarily separated from her. N.D. Cent. Code § 14-02.1-03 (Enacted 1975; Last Amended 1991).

Targeted Regulation of Abortion Providers (TRAP)

North Dakota prohibits certain qualified health care professionals from performing abortions, and has an unconstitutional and unenforceable law that subjects abortion providers to burdensome restrictions not applied to other medical professionals.

Among the most common TRAP regulations are those restricting the performance of abortions to hospitals or other specialized facilities, which require doctors to obtain medically unnecessary additional licenses, needlessly convert their practices to mini-hospitals at great expense, or perform abortions only in hospitals, an impossibility in many parts of the country.

North Dakota has an unconstitutional and unenforceable requirement that all abortions after 12 weeks of pregnancy be performed in a licensed hospital. N.D. Cent. Code § 14-02.1-04(2) (Enacted 1975; Last Amended 1979).

A federal court permanently enjoined the statute based on a stipulation that the law was unconstitutional under Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416 (1983), and other U.S. Supreme Court precedent. Miks v. Olson, No. A3-82-78 (D.N.D. Aug. 25, 1983) (stipulation for judgment).

Restrictions on Who May Perform Abortions

North Dakota prohibits certain qualified health care professionals from performing abortions.

Only a physician licensed by the state to practice medicine or osteopathy or employed by the United States using medical standards applicable to all other surgical procedures may perform an abortion. N.D. Cent. Code §§ 14-02.1-02(6), -04(1) (Enacted 1975).