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North Dakota

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/she 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 provide the procedure without parental consent if the physician certifies in writing that a medical emergency exists 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from the older law would be enforceable or whether the newer law's exclusion of a similar provision effectively repealed the older law's provision.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, it 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, it 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 terminate a pregnancy 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.

N.D. Cent. Code §§ 14-02.1-02 (Enacted 1975; Last Amended 2011), 14-02.1-02.1 (Enacted 1991; Last Amended 2011), 14-02.1-03 (Enacted 1975; Last Amended 2011), 14-02.1-03.1 (Enacted 1981; Last Amended 1985).

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