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North Dakota

Abortion Bans

NEAR-TOTAL

North Dakota enacted a ban on abortion that goes into effect as early as six weeks (upon detection of a fetal heartbeat), without an adequate exception to protect women's health or in cases in which the pregnancy is the result of rape or incest.  H.B. 1456, 63rd Gen. Assem., 1st Reg. Sess. (N.D. 2013) (Enacted 2013).

North Dakota's law makes the provision of previability abortion after six weeks a felony, unless necessary to preserve the woman's life or to avert serious risk of substantial and irreversible physical impairment of a major bodily function.  Physicians in violation of the law would also be subject to up to five years imprisonment and/or fines up to $5,000, and disciplinary action which may include license suspension or revocation.  In addition, the law allows the father or the pregnant woman to bring a civil suit for damages against the physician.  It also allows the woman, her parents, her guardian, her husband, her siblings, her other health-care providers, or the state attorney general to file for injunctive relief blocking the abortion provider from providing future abortion care after 20 weeks.  S. 2368, 63rd Gen. Assem., 1st Reg. Sess. (N.D. 2013) (Enacted 2013).

The law has been temporarily blocked by a federal court. The U.S. District Court for the District of North Dakota Southwestern Division issued a preliminary injunction after pro-choice activists challenged the law before it could go into effect.  MKB Management, Inc. v. Burdick, No. 1:13-cv-00071-DLH-CSM, 2013 U.S. Dist. LEXIS 102620 (D.N.D. July 22, 2013)

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 necessary to preserve the woman's life or the pregnancy is caused by rape or incest.  A person who provides a prohibited abortion could be imprisoned for up to five years.   N.D. Cent. Code A 12.1-31-12 (Enacted 2007).

AFTER 12 WEEKS

North Dakota outlaws abortion after 20 weeks without an adequate exception to protect women's health, for cases in which the pregnancy was the result of rape or incest, or in cases of fetal anomaly.  S. 2368, 63rd Gen. Assem., 1st Reg. Sess. (N.D. 2013) (Enacted 2013).

North Dakota's law makes abortion after 20 weeks a felony, unless necessary to preserve the woman's life or to avert serious risk of substantial and irreversible physical impairment of a major bodily function.  Physicians in violation of the law would also be subject to up to five years imprisonment and/or fines up to $5,000, and disciplinary action which may include license suspension or revocation.  In addition, the law allows the father or the pregnant woman to bring a civil suit for damages against the physician.  It also allows the woman, her parents, her guardian, her husband, her siblings, her other health-care providers, or the state attorney general to file for injunctive relief blocking the abortion provider from providing future abortion care after 20 weeks.  S. 2368, 63rd Gen. Assem., 1st Reg. Sess. (N.D. 2013) (Enacted 2013).

North Dakota also has an unconstitutional and unenforceable ban that outlaws abortion procedures as early as 12 weeks.  N.D. Cent. Code AA 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 had no 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 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' 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 AA 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 certain second-trimester abortion procedures and has no 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.






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