Justice Tufte’s pivotal role in a closely divided abortion case

A closely divided court—and a pivotal opinion

In Access Independent Health Services v. Wrigley, abortion providers and physicians challenged North Dakota’s abortion law. They argued that the North Dakota Constitution protects a right to abortion, and that the law’s exceptions were too unclear for doctors to know when they could legally provide an abortion.

The district court agreed with the challengers and struck down the law. The state appealed, bringing the case to the North Dakota Supreme Court.

Justice Jerod Tufte played a central role in the Supreme Court’s decision. In an extensive opinion joined by Chief Justice Jon Jensen, he rejected the argument that the state Constitution protects a broad right to abortion. He examined the Constitution’s text and the meaning North Dakotans would have understood when they adopted it in 1889. He also concluded that the law did not violate the Constitution’s due process protections.

The justices were closely divided. Three members concluded that the law was unconstitutionally vague. Justice Tufte and Chief Justice Jensen concluded that it was not unconstitutional. The North Dakota Constitution requires at least four votes to strike down a law. Since that threshold was not reached, the Supreme Court reversed the district court’s ruling, and the law was not declared unconstitutional.

For supporters of the law, the result was a significant victory. Justice Tufte’s opinion helped lead the way by explaining why, in his view, the Constitution did not establish a right to abortion and why the Legislature’s law should remain in effect. The close vote also shows how much can turn on the reasoning and votes of individual justices.

This is an informational highlight of Justice Tufte’s work in this case, not an endorsement of Justice Tufte.