Abortion Providers: Restrictions
North Dakota imposes extra restrictions on abortion providers, despite the fact that all health-care providers already must comply with a variety of federal and state regulations governing health, safety, building and fire codes, and zoning requirements.
Restrictions on Where Abortion Services May Be Provided
North Dakota places medically unnecessary restrictions on where abortion services may be provided. Among the most common TRAP regulations are those restricting the provision of abortion services 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 provide abortion care only in hospitals, an impossibility in many parts of the country.
Every provider of medication abortion must enter into a written agreement in which a hospital and a separate doctor who has active admitting privileges and gynecological and surgical privileges at that hospital agree to accept and treat patients if complications arise. Nothing in the statute requires hospitals or doctors to agree to enter into such an arrangement. These requirements on medication abortion are in addition to an extensive list of conditions to which the medication’s distributor requires each prescribing doctor to agree. N.D. Cent. Code § 14-02.1-03.5 (Enacted 2011). A court issued a permanent injunction against the law in 2013. MKB Management Corp. v. Burdick, No. 09-2011-CV-02205, (N.D. East Central Dist. July 15, 2013). However, the North Dakota Supreme Court reversed this decision, meaning these restrictions on medication abortion are currently in effect without restriction. MKB Management Corp. v. Burdick, (2014 N.D. 197).
Every physician providing abortion services must have admitting and staff privileges at a hospital within 30 miles of the abortion facility. This law was temporarily enjoined. MKB Management Corp. v. Burdick, No. 09-2011-CV-02205, (N.D. East Central Dist. July 31, 2013). The case settled when the physicians obtained admitting privileges at a nearby hospital. An abortion facility also must have a staff member trained in CPR present at all times when abortion care is scheduled to occur. N.D. Cent. Code § 14-02.1-04 (Enacted 2013). North Dakota has an unconstitutional and unenforceable requirement that all abortion services after 12 weeks of pregnancy be provided 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 Provide Abortion Services
North Dakota prohibits certain qualified health-care professionals from providing abortion services.
Only a physician licensed by the state to practice medicine or osteopathy or employed by the United States using applicable medical standards may provide surgical- or medication-abortion care. N.D. Cent. Code §§ 14-02.1-02(6), -04(1) (Enacted 1975; Last Amended 2011).
North Dakota’s post-viability abortion restriction states that no abortion may be provided after the fetus may reasonably be expected to have reached viability unless the attending physician and two other licensed physicians who have examined the woman concur that the procedure is necessary to preserve the woman’s life or continuation of the pregnancy would impose on her a “substantial risk of grave impairment of her physical or mental health.” Consistent with the procedure used and good medical practice, the physician must take all reasonable steps to preserve the life and health of the fetus. A second physician must attend. N.D. Cent. Code §§ 14-02.1-04 (Enacted 1975; Last Amended 2011), 14-02.1-05 (Enacted 1975; Last Amended 1979).
NARAL Pro-Choice America supports the legal framework established in Roe v. Wade and does not oppose restrictions on post-viability abortion so long as they contain adequate exceptions to protect the woman’s life and health. NARAL Pro-Choice America opposes North Dakota’s post-viability restriction because the health exception is inadequate.
Near-Total Abortion 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 § 12.1-31-12 (Enacted 2007).
Abortion Bans Throughout Pregnancy: Ban by Week
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. N.D. Cent. Code § 14-02.1-05.2 (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. N.D. Cent. Code §§ 14-02.1-05.2, -02.1-05.3, -02.10-11 (Enacted 2013).
The law has been permanently 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). In 2014, the court found that the law was unconstitutional. MKB Management, Inc. v. Burdick, No. 1:13-cv-00071-DLH-CSM (D.N.D. filed April 16, 2014.) In 2015, the 8th Circuit affirmed this decision. M.K.B. Management Inc. v. Burdick, No. 14-2128 (8th Cir. filed July 22, 2015.)
Abortion Bans Throughout Pregnancy: Ban by Week
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. N.D. Cent. Code § 14-02.1-05.3 (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. N.D. Cent. Code §§ 14-02.1-05.3, -02.10-11 (Enacted 2013).
Abortion Bans Throughout Pregnancy: Procedure Ban
North Dakota also has an unconstitutional and unenforceable ban that outlaws abortion procedures as early as 12 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 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 §§ 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.
A woman may not receive abortion care 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 procedure; 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; (3) that she has a right to review state-prepared materials that describe the "unborn child" and list agencies that offer alternatives to abortion; and (4) that the woman is free to withhold or withdraw her consent to the abortion at any time without affecting her right to future care or treatment and without the loss of any state or federally funded benefits to which she might otherwise be entitled. The physician or physician’s agent must 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 "unborn child" at two-week gestational increments, including the possibility of survival. The color photographs must depict the development of the "unborn child." The descriptions must include information about brain and heart function, the presence of external members and internal organs during the applicable states of development, and any relevant information on the possibility of the "unborn child’s" survival. The state-prepared materials also must provide a comprehensive, geographically indexed 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.
Information on the support obligations of the father, including his legal duty to support his child, also must be made available. This information may include discussion of child-support payments and health insurance, and the fact that paternity may be established by the father’s signature and that child-support services and enforcement may be obtained by calling state or county public assistance agencies.
Also included must be objective information describing the various surgical and medication-induced methods of abortion as well as the immediate and long-term medical risks commonly associated with each abortion method, including risks of infection, hemorrhage, cervical or uterine perforation or rupture, danger to subsequent pregnancies, the possible increased risk of breast cancer, the possible adverse psychological effects associated with abortion, and the medical risks carrying a child to term.
N.D. Cent. Code §§14-02.1-03(1) (Enacted 1975; Last Amended 1999), 14-02.1-02 (Enacted 1975; Last Amended 2011), 14-02.1-02.1 (Enacted 1991; Last Amended 2011).
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).
North Dakota requires a woman seeking an abortion to wait at least 24 hours between the time she receives biased-counseling materials and when she can get the procedure. N.D. Cent. Code §§14-02.1-03(1) (Enacted 1975; Last Amended 1999), 14-02.1-02 (Enacted 1975; Last Amended 2011), 14-02.1-02.1 (Enacted 1991; Last Amended 2011).
Insurance Coverage & Abortion
Prohibits Abortion Coverage in the State
Does North Dakota prohibit statewide private insurance coverage of abortion services?
Yes. Private health-insurance contracts, plans, or policies offered in the state may not include abortion coverage, with an exception only to save a woman’s life. Abortion coverage may be obtained only through an optional rider for which an additional premium is paid. However, insurers are not required to offer such riders and there is no evidence that such separate policies exist. (Even if they did exist, offering women the "option" to pay for separate abortion coverage is a false promise because no one plans for an unplanned pregnancy.) N.D. Cent. Code § 14-02.3-03 (Enacted 1979; Last Amended 2011).
Prohibits Abortion Coverage for Public Employees
Does North Dakota expressly prohibit insurance plans for public employees from covering abortion services?
Yes. No funds of this state of any agency, county, municipality, or any other subdivision thereof and no federal funds passing through the state treasury or a state agency may be used to pay for abortion, with an exception only to save a woman’s life. Nothing in the law prohibits the purchase of abortion coverage outside the exchange through an optional rider for which an additional premium is paid. However, insurers are not required to offer such riders and there is no evidence that such separate policies exist. (Even if they did exist, offering women the "option" to pay for separate abortion coverage is a false promise because no one plans for an unplanned pregnancy.) N.D. Cent. Code § 14-02.3-01.3 (Enacted 1979; Last Amended 2011).
Low-Income Women & Abortion
Restricts 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)(i) (Enacted 1978; Last Amended 2014); North Dakota Department of Human Services, General Information for Providers (April 2012), at http://www.nd.gov/dhs/services/medicalserv/medicaid/docs/gen-info-providers.pdf.
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). A court held that this provision conflicts with federal law prohibiting participating states from excluding abortion from the Medicaid program in cases of rape or incest as well as life endangerment, and issued a permanent injunction prohibiting its enforcement to the extent it conflicts with federal law. Fargo Women’s Health Org. v. Wessman, No. A3-94-36 (D.N.D. March 15, 1995), aff’d, No. 95-1920ND (8th Cir. Feb. 1, 1996).
Young Women & 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).
Insurance Coverage & Contraception
No state measure.
Low-Income Women & Contraception
No state measure.
No state measure.
Other Important Issues
No state measure.
Fake Health Centers
State Funds Crisis Pregnancy Centers
North Dakota supports crisis pregnancy centers (CPCs) by authorizing an "Alternatives-to-Abortion Services program," administered by the state Department of Human Services. This program is authorized to use federal funds made available from Title IV-A of the Social Security Act, Block Grants to States for Temporary Assistance for Needy Families. The FY’17 funding level is not publicly available. N.D. Cent. Code § 50-06-26 (Enacted, 2009); (42 U.S.C. 601 et seq.).
State Refers to Crisis Pregnancy Centers
North Dakota law refers women to crisis pregnancy centers (CPCs). In connection with the state’s biased-counseling and mandatory-delay law, when a woman tells a health-care provider she is considering abortion, the provider must give her a state-maintained list of facilities that will satisfy the law’s mandate. CPCs are included on the list without disclaimer of their biased nature and are not distinguished from legitimate health centers. N.D. Cent. Code § 14-02.1-02.1 (Enacted, 1991; Last Amended, 2011).
In Fargo Women’s Health Org. v. Schafter, the Eighth Circuit Court of Appeals held that this information can be delivered by telephone. 18 F.3d 526 (8th Cir. 1994).
Refusals & Guarantees
Refusals of Medical Care
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? Allows hospitals, physicians, nurses, hospital employees, and any other person to refuse to participate in abortion care. 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.
N.D. Cent. Code § 23-16-14 (Enacted 1973, Amended 2011).
Counseling & Referral Bans
Counseling & Referral Ban
North Dakota has an invalid and unenforceable law that blocks state, local, or federal family-planning funds from going to any person or organization that refers for or provides abortion services. 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).
An agency of the state may not fund, produce, disseminate, or endorse materials or programs of any type that do not give preference, encouragement, and support to childbirth over abortion. N.D. Cent. Code § 14-02.3-01 (Last Amended 2011).
A person acting in an official capacity as an employee or agent of a school district shall give preference, encouragement, and support to childbirth over abortion. No public school in the state may endorse or support any program or authorize a presentation that does not give preference, encouragement, and support to childbirth over abortion. N.D. Cent. Code § 15.1-19-06 (Last Amended 2011).
No state or federal funds used to provide treatment and support services for victims of human trafficking may be used to refer or counsel for abortion. 2015 N.D. Laws 2107.