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.