Yesterday (October 28, 2014), the North Dakota Supreme Court overturned a District Court ruling on a case concerning a 2011 law concerning the off-label use of abortion inducing drugs (H.B. 1297).
Last year, Cass County District Court Judge Wickham Corwin ruled this law unconstitutional under both the state constitution and federal constitution. In the process of ruling this law unconstitutional, Judge Corwin took it upon himself to invent a fundamental right to abortion under the liberty clause in the North Dakota Constitution.
While the North Dakota Supreme Court overturned Judge Corwin’s decision regarding the constitutionality of the law, they did not resolve the issue of the “fundamental right to abortion” that Judge Corwin made-up out of thin air.
Chief Justice Gerald VandeWalle noted that before the Supreme Court of the United States ruled on Roe v. Wade, North Dakota “had a long history of prohibiting abortions.” He also noted that “the legislature enacted provisions continuing to prohibit abortions” after Roe v. Wade. Chief Justice VandeWalle accurately states that, “our state constitution is silent about creating a state constitutional right to abortion.”
It is obvious that North Dakota has never recognized a right to abortion under the state constitution. Justice Sandstrom said it best, stating, "the plaintiffs made a conscious decision to seek to establish a separate state constitutional right to an abortion under the North Dakota constitution. Presumably, they did so as a backup in case a right to an abortion ever ceases to exist under the United States Constitution."
We are glad that the North Dakota Supreme Court ended up with the right ruling. However, the lack of a decision regarding the “fundamental right to abortion” under the North Dakota Constitution that Judge Corwin invented reaffirms that there is a very real need for our state to pass Measure 1. It is obvious that we need to take it upon ourselves and make sure that it is perfectly clear that our state recognizes and protects the right to life at every stage of development. We cannot become complacent in pursuing the right to life for all human beings.
Former United States Attorney General John Ashcroft was in North Dakota today, as part of press conferences in Bismarck and Fargo, to clarify some of the effects of Measure 1 should it pass.
Ashcroft has extensive knowledge about this issue. As Governor of Missouri, Ashcroft signed a piece of legislation with similar wording to Measure 1 into law. The Missouri law states, "the laws of this state shall be interpreted and construed to acknowledge on behalf of the unborn child at every stage of development, all the rights, privileges, and immunities available to other persons, citizens, and residents of this state, subject only to the Constitution of the United States, and decisional interpretations thereof by the United States Supreme Court and specific provisions to the contrary in the statutes and constitution of this state."
Ashcroft noted that the Missouri law and Measure 1 have the same effect. They both are there to guide us in our interpretation of other laws. Ashcroft noted that none of the "horrors" that are touted by those in opposition to Measure 1 have any basis in reality. In Missouri, after the law was signed into effect, IVF treatments were never curtailed; IVF is still being practiced in Missouri today; and that IVF will continue to be available in North Dakota.
Ashcroft, who argued pro-life laws before the Supreme Court of the United States as the former chief attorney for the United States government, went on to state that enshrining principles like Measure 1 into a state constitution is something that has been upheld by the Supreme Court of the United States previously (as was seen with the Missouri law).
Ashcroft stated that end of life issues would not be affected by the passing of Measure 1; something that those in opposition to Measure 1 have made wild accusations about.
When asked about whether or not women who have had abortions could be prosecuted under Measure 1, Ashcroft stated clearly that as a constitutional amendment that is not self-executing, Measure 1 does not allow for any prosecution at all. He stated that not only will there be no prosecution of anybody, but that there cannot be prosecution as a result of Measure 1.
We thank former US Attorney General John Ashcroft for coming to North Dakota and setting the record straight on Measure 1.