North Dakota AG objects to the judge’s reasoning for blocking the abortion ban

DAVE KOLPACK Associated Press

FARGO (AP) — The North Dakota Attorney General’s Office said Monday that a judge failed to use “rational mental process” when he found that there was a “substantial likelihood” that a constitutional challenge to the state’s abortion ban would succeed.

The state argued in a filing that South Central District Judge Bruce Romanick erred in preventing the ban from going into effect before a lawsuit filed by North Dakota’s only abortion clinic was settled. Attorneys for the Red River Women’s Clinic, which has already moved its services from Fargo to neighboring Moorhead, Minnesota, counter that Romanick properly considered the arguments and should not be overturned.

The state Supreme Court has scheduled hearings next week on whether Romanick’s injunction should stand.

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Attorney General Drew Wrigley and his attorneys said in a 20-page statement that Romanick made a mistake when he said there was no “clear and obvious” answer as to whether the state’s constitution prohibits abortion and that the case should therefore proceed should. To determine whether the outcome favors the clinic, Romanick would first need to establish that there is a constitutional right to have an abortion, Wrigley said.

“Such leaps in analysis do not appear to be the product of a rational mental process leading to a reasoned decision. The District Court’s firmness on this issue is weakened and unsupported by its own analysis and acknowledgment that the ‘answer as to whether the law is constitutional is not obvious,'” the state wrote.

In the clinic’s 30-page filing, attorneys argue that Romanick was right to focus on the fact that although the ban raises cases of rape, incest, or mother’s life as positive defenses against performing abortions, doctors first come up with it faced with a crime would have to file charges and then plead their case. The burden doctors and pregnant women unreasonable, said the judge.

“Similarly, it is in the public interest to uphold the injunction while the case progresses,” the clinic’s attorneys wrote. “The maintenance of the restraining order allows patients to continue to access emergency medical care in North Dakota; indeed, as the district court recognized, physicians could be deterred from performing abortions even in a life-threatening situation if the abortion ban were to go into effect.”

Romanick last month denied a motion by Wrigley to have the law go into effect while the lawsuit continued. Wrigley argued that the judge did not give sufficient consideration to the clinic’s chances of prevailing in court. The state Supreme Court agreed, prompting Romanick to look again.

Romanick stood his ground, saying the question of whether the state constitution “conveys a fundamental right to an abortion is a very lively and active issue.”

The lawsuit was filed by the clinic shortly after the US Supreme Court ruled Roe v. Wade had picked up. More than a dozen states, including North Dakota, had passed so-called trigger laws aimed at banning most abortions when the Supreme Court overturned the constitutional right to terminate a pregnancy.

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