North Dakota Abortion Ban Deemed Constitutional in Split Opinion From State Supreme Court

North Dakota’s abortion ban survived a court challenge after the state Supreme Court failed to meet the supermajority required to overturn the law.

The Nov. 21, 2025 decision reverses a lower court’s ruling from last fall that struck down the law as unconstitutionally vague and found that women have a right to seek abortions until the point of fetal viability. 

Three of the five justices found the law unconstitutional: Daniel Crothers, Lisa Fair McEvers, and Daniel Narum, a North Dakota district court judge who sat on the case in place of Douglas Bahr, who recused. Chief Justice Jon Jensen and Justice Jerod Tufte found the law constitutional. A vote of at least four justices is needed to find a law unconstitutional.

The ruling follows more than two years of litigation over the statute, which was signed by former North Dakota Gov. Doug Burgum in April 2023, just weeks after the state Supreme Court struck down a previous abortion ban.

The law bars abortion in all cases except rape or incest if the mother has been pregnant less than six weeks, or when the pregnancy would be considered a serious physical health threat under “reasonable medical judgment.” Psychological conditions do not count as serious health risks under the ban.

The abortion ban establishes penalties of up to five years in prison and a maximum $10,000 fine for anyone found in violation of the law.

A group of reproductive health-care doctors and an abortion clinic sued the North Dakota over the policy, arguing that it does not fix any of the problems the high court identified with the prior ban. The plaintiffs said the law endangers the lives of pregnant people and denies doctors due process by not specifying when an abortion may be performed for health reasons.

The state of North Dakota maintained that the ban is not vague and is necessary to protect “unborn children.”

Crothers, Fair McEvers, and Narum in their majority opinion agreed with the district court’s finding that the law is unconstitutionally vague. 

The justices highlighted several pages of testimony from doctors who testified for North Dakota and appeared to have different opinions about how the law works, including what counts as a “serious health risk” and what “reasonable medical judgment” means.

“The State’s expert witnesses all testified they understood the law, but when asked about the meaning of essential terms the experts provided unclear and often conflicting responses,” they wrote.

The justices also noted that the statute appears to conflict with laws related to self-defense and the defense of others.

If ordinary citizens cannot understand how a law works, they have no way of following it, the justices wrote. This also runs the risk of “discriminatory and arbitrary” enforcement of the law by North Dakota, they added.

“It is the legislature’s responsibility to clearly define the bounds for the executive branch’s exercise of the State’s police power,” the majority opinion states.

The three justices concluded that the district court ruled correctly in striking down the law, but declined to take a position on the lower court’s finding that abortion is legal until the point of fetal viability.

In their dissent, Tufte and Jensen disagreed that the law is unconstitutionally vague.

They wrote that in order to demonstrate the law is vague, the plaintiffs should have provided evidence of it being enforced unequally. Instead, the plaintiffs were basing their case on “hypothetical future conduct” instead of reality, they wrote.

“The serious health risk exception does not present a clear answer to every imaginable situation,” Tufte and Jensen wrote. “No statute can. This statute provides minimum guidelines to avoid arbitrary and discriminatory enforcement, and also provides fair warning to a reasonable person about what conduct is prohibited.”

The dissenting justices wrote that when North Dakota adopted its constitution in 1889, abortion was illegal except when necessary to save the life of the mother. They said there is no evidence that the authors of the North Dakota Constitution intended to provide more expansive abortion rights.

The state constitution “does not imply a right to abortion as such, and evolving public opinion on abortion cannot create one—only a constitutional amendment can do that,” they wrote.

North Dakota’s Republican-dominated Legislature passed the 2023 law with overwhelming support from both chambers.

State Sen. Janne Myrdal, a Republican and anti-abortion advocate who sponsored the legislation, said she was grateful for the ruling.

“What it settled was that North Dakota believes in the life of the mother and the child, unborn or born, and we’re going to continue to do that,” Myrdal said.

The North Dakota Catholic Conference, which lobbied in support of the law, said it was pleased the decision overturns what it called a “radical decision” by the district court judge.

State Rep. Karla Rose Hanson, a Democrat who has sponsored bills promoting reproductive rights, said she was “deeply disappointed” with the decision.

“My concern remains that women’s lives and doctor’s livelihoods are at risk with this law,” Hanson said. “Abortion bans make it more dangerous to be pregnant because doctors are worried about legal consequences.” 

She pointed out that the rape and incest exceptions are only for the first six weeks of pregnancy, before many women know they’re pregnant.

North Dakota Attorney General Drew Wrigley in a Friday statement called the law “important pro-life legislation, enacted by the people’s Legislature.”

North Dakota Gov. Kelly Armstrong said late Friday he supported the U.S. Supreme Court decision that allowed states to set their own laws related to abortion. 

“I appreciate the North Dakota Supreme Court’s ruling upholding current state law, which protects life while including exceptions for rape, incest, and health of the mother,” Armstrong, a Republican, said in a statement.

Christina Sambor, a Bismarck, North Dakota attorney who represented the plaintiffs, said the dissenting justices are wrong to frame their analysis of the law on how North Dakotans viewed women’ s rights in 1889. 

She also disagreed with Jensen and Tufte’s conclusion that the plaintiffs based their arguments on hypothetical scenarios.

“The unnecessary increased dangers experienced in childbirth in our state due to this law are in no way hypothetical,” she said. “It is extraordinarily disappointing that this law will be allowed to stand and continue to cause harm.” 

In its 2023 ruling that declared the state’s previous abortion ban unconstitutional, the North Dakota Supreme Court found North Dakota women have a right to obtain abortions for health reasons. The state Supreme Court also found that the state may pass laws that restrict access to abortion to protect fetuses so long as the laws avoid needlessly infringing on other fundamental rights.

North Dakota does not have an abortion provider. Red River Women’s Clinic—one of the plaintiffs that challenged the abortion ban—previously operated in Fargo, North Dakota but then moved to Moorhead, Minnesota. Executive Director Tammi Kromenaker said most of the clinic’s patients are from North Dakota.

“We know people will always need and seek this care, and making it illegal just makes it harder—and in some cases, less safe—to get,” she said in a statement. “We will keep fighting for the freedom and dignity of North Dakotans.”

Reporter Michael Achterling contributed to this report.

This story was written by Mary Steurer and originally published by North Dakota Monitor. North Dakota Monitor is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. North Dakota Monitor maintains editorial independence. Contact Editor Amy Dalrymple for questions: info@northdakotamonitor.com.

The post North Dakota Abortion Ban Deemed Constitutional in Split Opinion From State Supreme Court appeared first on Rewire News Group.