Wrigley v. Romanick

                                                                                   FILED
                                                                           IN THE OFFICE OF THE
                                                                        CLERK OF SUPREME COURT
                                                                               MARCH 16, 2023
                                                                         STATE OF NORTH DAKOTA




                   IN THE SUPREME COURT
                   STATE OF NORTH DAKOTA

                                  

Drew H. Wrigley, in his official capacity as
Attorney General for the State of North
Dakota,                                                              Petitioner
      v.
The Honorable Bruce A. Romanick, Judge of
the District Court, South Central Judicial
District; Access Independent Health Services, Inc.,
d/b/a Red River Women’s Clinic, on behalf
of itself and its patients, and Kathryn L.
Eggleston, M.D., on behalf of herself and her
patients; and Birch P. Burdick, in his official
capacity as the State’s Attorney for Cass
County,                                                           Respondents

                                 No. 20220260

Petition for Supervisory Writ.

REVIEW GRANTED AND RELIEF DENIED.

Opinion of the Court by Jensen, Chief Justice, in which Justices Crothers,
McEvers, and District Judge Narum joined. Justice Tufte filed a concurring
opinion. Justice McEvers filed an opinion concurring specially, in which Justice
Crothers and District Judge Narum joined.

Matthew A. Sagsveen (argued), Solicitor General, and Courtney R. Titus
(appeared), Assistant Attorney General, Bismarck, ND, for petitioner.
Meetra Mehdizadeh (argued), Luna Barrington (on brief), Lauren Bernstein
(on brief), Melissa Rutman (on brief), Colin McGrath (on brief), Naz Akyol (on
brief), Alexandra Blankman (on brief), Cassandra D’Alesandro (on brief), Liz
Grefrath (on brief), and Lauren Kelly (on brief), New York, NY, and Christina
A. Sambor (appeared), Bismarck, ND, for respondents Access Independent
Health Services, Inc., d/b/a Red River Women’s Clinic, on behalf of itself and
its patients, and Kathryn L. Eggleston, M.D., on behalf of herself and her
patients.
Christopher T. Dodson, Bismarck, ND, and Paul B. Linton, Northbrook, IL, for
amicus curiae North Dakota Catholic Conference.

Elizabeth A. Elsberry and Christopher E. Rausch, Bismarck, ND, and Jocelyn
Keider, Boston, MA, and Molly A. Meegan and Kimberly A. Parker,
Washington, DC, for amicus curiae American College of Obstetricians and
Gynecologists, American Medical Association, and Society for Maternal-Fetal
Medicine.
                             Wrigley v. Romanick
                                No. 20220260

Jensen, Chief Justice.

[¶1] North Dakota Attorney General Drew Wrigley, on behalf of the State of
North Dakota (“the State”), seeks a supervisory writ to vacate the district
court’s order granting a preliminary injunction enjoining enforcement of
N.D.C.C. § 12.1-31-12. The injunction was granted in Access Indep. Health
Servs., Inc., et al. v. Drew H. Wrigley, et al., Burleigh Co. Court No. 2022-CV-
01608. The State argues the district court abused its discretion in granting the
injunction because Access Independent Health Services, Inc., d/b/a Red River
Women’s Clinic (“RRWC”) and the other plaintiffs failed to prove (1) they have
a substantial likelihood of success on the merits, (2) they will suffer irreparable
injury, (3) there will be harm to other interested parties, and (4) the effect on
the public interest weighs in favor of granting a preliminary injunction. While
the regulation of abortion is within the authority of the legislature under the
North Dakota Constitution, RRWC has demonstrated likely success on the
merits that there is a fundamental right to an abortion in the limited instances
of life-saving and health-preserving circumstances, and the statute is not
narrowly tailored to satisfy strict scrutiny. We grant the requested review, deny
the relief requested in the petition, and leave in place the order granting a
preliminary injunction.

                                        I

[¶2] RRWC filed a motion for a temporary restraining order and preliminary
injunction, seeking to enjoin enforcement of N.D.C.C. § 12.1-31-12 which reads
as follows:

      1.    As used in this section:
            a.   “Abortion” means the use or prescription of any
                 substance, device, instrument, medicine, or drug to
                 intentionally terminate the pregnancy of an individual
                 known to be pregnant. The term does not include an
                 act made with the intent to increase the probability of
                 a live birth; preserve the life or health of a child after

                                        1
                   live birth; or remove a dead, unborn child who died as
                   a result of a spontaneous miscarriage, an accidental
                   trauma, or a criminal assault upon the pregnant
                   female or her unborn child.
            b.     “Physician” means an individual licensed to practice
                   medicine under chapter 43-17.
            c.     “Professional judgment” means a medical judgment
                   that would be made by a reasonably prudent physician
                   who is knowledgeable about the case and the
                   treatment possibilities with respect to the medical
                   conditions involved.
      2.    It is a class C felony for a person, other than the pregnant
            female upon whom the abortion was performed, to perform
            an abortion.
      3.    The following are affirmative defenses under this section:
            a.     That the abortion was necessary in professional
                   judgment and was intended to prevent the death of the
                   pregnant female.
            b.     That the abortion was to terminate a pregnancy that
                   resulted from gross sexual imposition, sexual
                   imposition, sexual abuse of a ward, or incest, as those
                   offenses are defined in chapter 12.1-20.
            c.     That the individual was acting within the scope of that
                   individual’s regulated profession and under the
                   direction of or at the direction of a physician.

[¶3] The district court granted the motion for a temporary restraining order
and preliminary injunction. The State requested this Court exercise
supervisory jurisdiction to grant a writ, requiring the district court vacate the
preliminary injunction asserting, in part, that the district court had failed to
determine whether RRWC had a substantial likelihood of success on the merits
of its claim, a prerequisite to granting a preliminary injunction. This Court
granted the State’s request in part, directing the district court to determine
RRWC’s substantial likelihood of success on the merits of its cause of action
and thereafter reconsider whether a preliminary injunction was appropriate.

[¶4] The district court conducted further analysis on whether RRWC had a
substantial likelihood of success on the merits and held RRWC had a
substantial likelihood of prevailing in the litigation. The court concluded that
                                       2
continuation of the preliminary injunction was necessary. This Court now
considers the State’s request for a supervisory writ to vacate the preliminary
injunction.

                                       II

[¶5] RRWC argues this Court should decline to exercise its supervisory
jurisdiction because this issue is not the sort of “extraordinary case” where the
Court’s intervention is necessary. This Court’s authority to issue a supervisory
writ is “purely discretionary.” State, ex rel. Harris v. Lee, 

, 

 (quoting State v. Paulson, 

, 

). This
Court will “determine whether to exercise supervisory jurisdiction on a case-
by-case basis, considering the unique circumstances of each case.” 

 “Exercise
of supervisory jurisdiction may be warranted when issues of vital concern
regarding matters of important public interest are presented.” 

 It is entirely
within this Court’s discretion to address the issues raised or to decline to
address the issues.

[¶6] Section 12.1-31-12, N.D.C.C., was enacted in 2007. The enactment of the
statute included recognition of existing United States Supreme Court
precedents limiting the authority of states to regulate abortion. The effective
date of the statute was tied to the issuance of a judgment by the United States
Supreme Court restoring to the states the authority to regulate abortion.

[¶7] On June 24, 2022, the United States Supreme Court issued its decision
in Dobbs v. Jackson Women’s Health Organization holding that the federal
constitution does not protect a woman’s right to abortion. 

(2022). The Supreme Court explicitly overruled Roe v. Wade, 

(1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey, 

 (1992), and expressly restored to the states the authority to regulate
abortion. Dobbs, 

. The Supreme Court reasoned “[i]t is time
to heed the Constitution and return the issue of abortion to the people’s elected
representatives.” 

. And, “[t]he permissibility of abortion, and the
limitations, upon it, are to be resolved like most important questions in our
democracy: by citizens trying to persuade one another and then voting.” 

                                        3
(quoting Casey, 

 (Scalia, J., concurring in judgment in part and
dissenting in part)).

[¶8] This petition presents an unusual situation well within the range of our
past decisions exercising original jurisdiction to “rectify errors and prevent
injustice in extraordinary cases[.]” Harris, 

. An order granting
a preliminary injunction is by definition “extraordinary.” Black Gold OilField
Servs., LLC v. City of Williston, 

, 

; Vorachek
v. Citizens State Bank, 

 (N.D. 1990).

[¶9] On another occasion, we exercised our original jurisdiction to consider
an interim district court order restraining and enjoining during the pendency
of the action the governor and other state officials from acting pursuant to
certain statutes relating to the Bank of North Dakota. State ex rel. Lemke v.
Dist. Ct. of Stutsman Cnty., 

 (1921). The Attorney General
petitioned this Court for relief in the form of an appropriate writ. 

.
The Court vacated the district court’s restraining order pending review of the
trial court action in issuing the restraining order. 

. We said:

      We do not find it necessary to refer to the matters set forth in the
      return filed by the district judge, for in our view of the case it is
      controlled by certain legal principles applicable to undisputed
      facts, or facts of which we must take judicial notice. In other words,
      we deem the questions arising in this case to be merely questions
      of law.

 We exercised our supervisory jurisdiction and issued “a writ directing the
district court, and the judge thereof, to set aside the restraining order issued
at the commencement of the action.” 

.

[¶10] In another case, this Court exercised its original jurisdiction to restrain
a district court from issuing a preliminary injunction. State ex rel. Dorgan v.
Fisk, 

 (N.D. 1906). The board of drain commissioners of Grand
Forks County had advertised for bids for construction of a drain. 

.
Objecting landowners filed suit and procured an order to show cause why a
preliminary injunction should not be issued enjoining the defendant from
further proceedings regarding the drain. 

 The Board appeared at the
                                       4
scheduled hearing and objected, after which “the court stated that a
preliminary injunction would be issued.” 

 An interested landowner
petitioned this Court for a writ “commanding [the district judge] to desist from
further proceeding in the injunctional action.” 

 Exercising our discretionary
original jurisdiction to grant the writ and restrain the district court from
issuing an injunction, we explained:

             The remedy by appeal would exist if the injunction be
      granted. The mere fact that an appeal would lie is not enough. It
      must be speedy and adequate. The granting of the writ to inferior
      courts is seldom a matter of absolute right as the remedy by appeal
      generally exists, and whether the appeal is speedy or adequate is
      a matter within the discretion of the appellate court, depending
      upon the particular facts of each case. The court cannot accurately
      determine when a trial in the case at bar would come on nor when
      the appeal would reach this court if an appeal were necessary.
      Inasmuch as the district court has exceeded its jurisdiction, a trial
      is unnecessary, and would be expensive and vexatious to each
      party; and that the result of a trial and appeal could not under the
      most favorable circumstances, be as speedy as a decision upon this
      original proceeding, we deem it a proper case for issuing a writ.
      The application for the writ is made to hasten a public
      improvement deemed to be of importance, at least to the petitioner
      and a large number of interested persons. There being a plain case
      of want of jurisdiction presented, and the appeal not being as
      speedy or adequate as this proceeding, we are satisfied that the
      petitioner is entitled to this summary and extraordinary remedy.
      We appreciate that this remedy should be cautiously granted. But,
      in view of the nature of the act that was enjoined, we have no doubt
      of the propriety and legality of assuming original jurisdiction.

.

[¶11] The issue presented by this petition is an issue of vital concern regarding
a matter of important public interest. The extent to which a state legislature
may regulate abortions has been the subject of multiple United States
Supreme Court decisions, decisions of this Court, and the underlying action
contends the legislature has exceeded its constitutional authority in regulating


                                       5
abortion. We choose to exercise our discretion to review whether the district
court abused its discretion issuing a preliminary injunction.

                                      III

[¶12] The State challenges each of the required elements for the granting of a
preliminary injunction. We have noted the following regarding the elements
necessary for a preliminary injunction:

             A trial court’s discretion to grant or deny a preliminary
      injunction is based on the following factors: (1) substantial
      probability of succeeding on the merits; (2) irreparable injury; (3)
      harm to other interested parties; and (4) effect on the public
      interest. Nodak Mut. Ins. Co. v. Ward County Farm Bureau, 

, 

; Vorachek v. Citizens State Bank, 

 (N.D. 1990). The decision to grant or deny a
      preliminary injunction is within the discretion of a trial court, and
      its determination will not be disturbed on appeal absent an abuse
      of discretion. Nodak Mut., 

, 

. A
      trial court abuses its discretion if it acts in an arbitrary,
      unreasonable, or unconscionable manner, its decision is not the
      product of a rational mental process leading to a reasoned
      determination, or it misinterprets or misapplies the law. 

Eberts v. Billings Cnty. Bd. of Comm’rs, 

, 

.
“Generally, ‘a preliminary injunction is an extraordinary and drastic remedy
and should not be granted unless the movant, by a clear showing, carries the
burden of persuasion.’” Black Gold OilField, 

 (quoting
Vorachek, at 585).

                                      IV

[¶13] RRWC argues it has a substantial likelihood of succeeding on the merits
in the underlying lawsuit because there is a fundamental right to receive
abortion care under the North Dakota Constitution. RRWC’s complaint asserts
the statute is unconstitutional and provides that RRWC is challenging the
entirety of the statute, but also asserts challenges on behalf of various
constituencies, including women seeking abortions and practicing physicians.

                                       6
[¶14] An initial determination of whether there is a fundamental right to an
abortion under the State Constitution is necessary because, if such a right
exists within our Constitution, the statute is subject to strict scrutiny by this
Court. Hoff v. Berg, 

, 

. In contrast, if we
conclude there is no fundamental right to abortion, the statute is subject to a
review by this Court as to whether the legislature had a rational basis for
enactment. 

[¶15] RRWC argues sections 1 and 12 of article I of the North Dakota
Constitution provide for a fundamental right to abortion. These sections read
as follows:

            Section 1. All individuals are by nature equally free and
      independent and have certain inalienable rights, among which are
      those of enjoying and defending life and liberty; acquiring,
      possessing and protecting property and reputation; pursuing and
      obtaining safety and happiness; and to keep and bear arms for the
      defense of their person, family, property, and the state, and for
      lawful hunting, recreational, and other lawful purposes, which
      shall not be infringed.

      ....

            Section 12. In criminal prosecutions in any court whatever,
      the party accused shall have the right to a speedy and public trial;
      to have the process of the court to compel the attendance of
      witnesses in his behalf; and to appear and defend in person and
      with counsel. No person shall be twice put in jeopardy for the same
      offense, nor be compelled in any criminal case to be a witness
      against himself, nor be deprived of life, liberty or property without
      due process of law.

N.D. Const. art. I, §§ 1 and 12.

[¶16] RRWC argues the North Dakota Constitution should be interpreted
expansively because the North Dakota Constitution “is a living, breathing,
vital instrument, adaptable to the needs of the day, and was so intended by the
people when adopted.” State v. Norton, 

 (N.D. 1934). The
State argues there is no constitutional right to an abortion under either section
                                        7
of article I of the North Dakota Constitution, citing to MKB Management Corp.
v. Burdick, 

, 

 (VandeWalle, Chief Justice,
concurring). The State contends the inherent rights recognized under sections
1 and 12, such as the fundamental right of parents to parent their child are
distinguishable from abortion because abortion, unlike the right to parent one’s
own child, does not have longstanding roots in American culture.

[¶17] This Court uses        the   following   framework     when    interpreting
constitutional provisions:

             In interpreting constitutional provisions, we apply general
      principles of statutory construction. Thompson v. Jaeger, 

, 

. Our overriding objective is to give effect
      to the intent and purpose of the people adopting the constitutional
      provision. City of Bismarck v. Fettig, 

, 

. The intent and purpose of constitutional provisions are to be
      determined, if possible, from the language itself. Thompson, at ¶
      7. In construing constitutional provisions, we ascribe to the words
      the meaning the framers understood the provisions to have when
      adopted. Kadrmas v. Dickinson Pub. Schs., 

      (N.D. 1987). We may consider contemporary legal practices and
      laws in effect when the people adopted the constitutional
      provisions. See State v. Orr, 

 (N.D. 1985)
      (interpreting right to counsel provision of state constitution in view
      of statutes in effect when constitution adopted); City of Bismarck
      v. Altevogt, 

 (N.D. 1984) (interpreting right
      to jury trial under state constitution in view of territorial statutes
      defining right to jury trial).

MKB Mgmt. Corp., 

. “[T]he North Dakota Constitution must
be read in the light of history.” State v. Allesi, 

 (N.D. 1974).

[¶18] Whether there is a fundamental right to abortion within the North
Dakota Constitution was before this Court previously in MKB Management
Corp. In MKB Management Corp., this Court could not reach a sufficient
majority to hold the underlying statute unconstitutional, the result RRWC is
ultimately seeking in this case. MKB Mgmt. Corp., 

. See N.D.
Const. art. VI, § 4 (“[This Court] shall not declare a legislative enactment

                                        8
unconstitutional unless at least four of the members of the court so decide.”).
Additionally, this Court was unable to determine whether there is a
fundamental right to an abortion under the North Dakota Constitution. MKB
Mgmt. Corp., at ¶ 1 (VandeWalle, C.J., concurred, at ¶ 38 finding “our state
constitutional provisions were not intended to encompass a fundamental right
to abortion[.]”); (Kapsner, J., and Maring, J., writing separately, at ¶ 97
concluding “a fundamental right to choose abortion before viability exists
under a woman’s liberty interest in article [I], section 1 of the North Dakota
constitution and that interest is protected under article [I], section 12.”);
(Crothers, J., concurred, at ¶ 157 finding this case should not be decided under
the North Dakota Constitution); (Sandstrom, J., concurred, at ¶ 170 stating
“[t]he Chief Justice persuasively argues there is no separate state
constitutional right to an abortion.”).

[¶19] Several states have found their state constitutions provide for a
fundamental right to abortion. The Minnesota Supreme Court recognized a
fundamental right to abortion under a combination of sections and rights in
the Minnesota Constitution. Women of State of Minn. by Doe v. Gomez, 

 (Minn. 1995). The California Supreme Court found a
fundamental right to abortion under California’s constitutional privacy clause.
Am. Acad. of Pediatrics v. Lungren, 

, 

, 

 (1997). The Alaska Supreme Court found a fundamental right to
abortion within the right to privacy in the Alaska Constitution. Valley Hosp.
Ass’n, Inc. v. Mat-Su Coal. for Choice, 

 (Alaska 1997). The
Montana Supreme Court found a fundamental right to an abortion under
Montana’s constitutional provision which explicitly guarantees its citizens the
right of privacy. Armstrong v. State, 

, 

 (1999).
The New Jersey Supreme Court found a fundamental right to abortion within
the “natural and unalienable rights” clause of the New Jersey Constitution.
Planned Parenthood of Cent. N.J. v. Farmer, 

, 

(2000). The Kansas Supreme Court has concluded its state constitution
provides abortion rights. Hodes & Nauser, MDs, P.A. v. Schmidt, 

,

 (2019). Lastly, the Florida Supreme Court found a fundamental


                                       9
right to abortion within Florida’s constitutional right to privacy. Gainesville
Woman Care, LLC v. State, 

 (Fla. 2017).

[¶20] For the reasons set out below, we conclude RRWC has a substantial
likelihood in establishing there is a fundamental right for a woman to obtain
an abortion in instances where it is necessary to preserve her life or health. We
need go no further here to determine whether there are fundamental rights
broader in scope.

[¶21] “Our overriding objective is to give effect to the intent and purpose of the
people adopting the constitutional statement.” State v. Hagerty, 

, 

 (quoting Comm’n on Med. Competency v. Racek, 

 (N.D. 1995)). To accomplish this we must construe the
constitution in light of the contemporaneous history existing at and prior to
the adoption of the constitutional provision. City of West Fargo v. McAllister,

, 

.

[¶22] North Dakota Constitution article I, section 1 was enacted in 1889 when
North Dakota was admitted as a state to the Union. Section 1 provides, in part,
“[a]ll individuals are by nature equally free and independent and have certain
inalienable rights, among which are those of enjoying and defending life and
liberty; acquiring, possessing and protecting property and reputation;
pursuing and obtaining safety and happiness[.]” N.D. Const. art. I, § 1. The
North Dakota Constitution explicitly provides all citizens of North Dakota the
right of enjoying and defending life and pursuing and obtaining safety. These
rights implicitly include the right to obtain an abortion to preserve the
woman’s life or health.

[¶23] North Dakota’s history and traditions support this conclusion. North
Dakota has a long history of permitting women to obtain abortions to preserve
their life or health. Prior to statehood, North Dakota, then part of the Dakota
Territory, criminalized abortions but explicitly provided an abortion was not a
criminal act if the treatment was done to preserve the life of the woman:

      Every person who administers to any pregnant woman, or who
      prescribes for any such woman, or advises or procures any such
                                       10
      woman to take any medicine, drug or substance, or uses or employs
      any instrument, or other means whatever, with intent thereby to
      procure the miscarriage of such woman, unless the same is
      necessary to preserve her life, is punishable by imprisonment in
      the territorial prison not exceeding three years, or in a county jail
      not exceeding one year.

Compiled Laws of the Territory of Dakota, Penal Code, § 6538 (1887). The laws
of the Dakota Territory read identically and provided the ability to receive a
life-preserving abortion in 1877 and 1883.

[¶24] After statehood, North Dakota enacted a law which criminalized
abortions but again explicitly provided an abortion would not be considered a
criminal act if the treatment was done to preserve the life of the woman, which
read:

      Every person who administers to any pregnant woman, or who
      prescribes for any such woman, or advises or procures any such
      woman to take any medicine, drug or substance, or uses or employs
      any instrument or other means whatever, with intent thereby to
      procure the miscarriage of such woman, unless the same is
      necessary to preserve her life, is punishable by imprisonment in
      the penitentiary not less than one and not exceeding three years,
      or in a county jail not exceeding one year.

N.D. Rev. Code § 7177 (1895). North Dakota’s legislature repeatedly reaffirmed
the criminal prohibitions in substantially the same form and always with the
same exception for abortions “necessary to preserve her life.” N.D. Rev. Code §
7177 (1899); N.D. Rev. Code § 8912 (1905); N.D. Rev. Code § 9604 (1913); N.D.
Rev. Code § 12-2501 (1943); N.D.C.C. § 12-25-01 (1959); N.D.C.C. § 12.1-19-01
(1973). North Dakota did not criminalize life-preserving abortions until
N.D.C.C. § 12.1-31-12 was enacted in 2007 and became eligible for enforcement
in 2022.

[¶25] Medical journals published shortly after statehood indicate it was
common knowledge that an abortion could be performed to preserve the life or
health of the woman.


                                       11
      There are not infrequently cases in which an abortion is
      imperative: the mentally unfit who might become deranged; the
      woman with a narrow brim or outlet because of which her life
      might be in danger and a Cesar[e]an section is the only relief; the
      woman who may bleed to death; the eclamptic; and those suffering
      from dangerous diseases. This class, fortunately, is small in
      number; and abortion is performed only after a deliberate and
      careful consultation in which the dangers of the abortion are
      weighed from every side.

Criminal Abortions, 34 JOURNAL-LANCET 81, 82 (1914). Additionally, in the
journal a doctor describes an abortion performed: “Mrs. T. first came under the
writer’s care for acute septic abortion. The uterus were emptied, and after a
rather continued run of temperature the patient made a symptomatic
recovery.” A.C. Stokes, M.D., Diseases of the Urinary Tract Produced by
Diseases of the Genital Tract in the Female, 34 JOURNAL-LANCET 593, 594
(1914). North Dakota recognized and approved abortions performed to
preserve the life or health of the woman.

[¶26] The State asserts abortion cannot be included as a fundamental right,
because the inherent rights reserved to the people under sections 1 and 12,
such as the fundamental right of parents to parent their child, are
distinguishable from abortion because abortion, unlike the right to parent one’s
own child, does not have longstanding roots in American culture. This
assertion is incorrect, as noted above, North Dakota has a longstanding history
of allowing pregnant women to receive an abortion to preserve her life or
health. The legislature enacted and reaffirmed laws which always provided an
exception to preserve the life of the woman up and until 2007 when N.D.C.C.
§ 12.1-31-12 was enacted as a trigger law. See N.D. Rev. Code § 7177 (1899);
N.D. Rev. Code § 8912 (1905); N.D. Rev. Code § 9604 (1913); N.D. Rev. Code §
12-2501 (1943); N.D.C.C. § 12-25-01 (1959); N.D.C.C. § 12.1-19-01 (1973);
N.D.C.C. § 14-02.1-04 (1975). Like the right to parent one’s own child, the right
to receive a health or life-preserving abortion is deeply rooted in North
Dakota’s history and culture.




                                       12
[¶27] Fundamental rights are those which are deeply rooted in history and
tradition and are implicit in the concept of ordered liberty. State v. Baxter, 

, 

. North Dakota’s history and traditions, as well
as the plain language of its Constitution, establish that the right of a woman
to receive an abortion to preserve her life or health was implicit in North
Dakota’s concept of ordered liberty before, during, and at the time of statehood.
After review of North Dakota’s history and traditions, and the plain language
of article I, section 1 of the North Dakota Constitution, it is clear the citizens
of North Dakota have a right to enjoy and defend life and a right to pursue and
obtain safety, which necessarily includes a pregnant woman has a fundamental
right to obtain an abortion to preserve her life or her health.

                                        V

[¶28] Because we hold the North Dakota Constitution provides a fundamental
right to receive an abortion to preserve a pregnant woman’s life or health, the
constitutionality of N.D.C.C. § 12.1-31-12 must be analyzed under the strict
scrutiny standard. A statute which restricts a fundamental right is subject to
strict scrutiny standard of review which will only be justified if it furthers a
compelling government interest and is narrowly tailored to serve that interest.
Hoff, 

.

[¶29] The State argues it has a compelling interest in protecting women’s
health and protecting unborn human life. RRWC does not challenge this
assertion. We have previously held several interests compelling, including the
State’s interest in establishing minimum standards of education for children,
interest in promoting grandparent visitation while protecting parents’ right to
parent their child, interest in highway safety, and an interest in regulating the
practice of law within its boundaries. Bismarck Pub. Sch. Dist. No. 1 v. State
By and Through N.D. Legislative Assembly, 

 (N.D. 1994);
Kulbacki v. Michael, 

, 

; Kobilanksy v. Liffrig,

 (N.D. 1984); State v. Niska, 

 (N.D.
1986). The State has a compelling interest in protecting women’s health and
protecting unborn human life, as these interests are at least of the same
importance as compelling interests previously identified by this Court.

                                        13
[¶30] Nevertheless, the State must still show N.D.C.C. § 12.1-31-12 is
necessary to achieve the compelling state interests. While we note the
legislature can regulate abortion, it must do so in a manner that is narrowly
tailored to achieve the compelling interest. Hoff, 

. On its
face, N.D.C.C. § 12.1-31-12 unnecessarily restricts a woman’s access to an
abortion to preserve her life or health. Section 12.1-31-12, N.D.C.C.,
criminalizes abortions performed even if the abortion is to preserve the life or
health of the woman. The statute requires a physician who performs a life-
preserving abortion to face prosecution of a class C felony, and if prosecuted
prove by a preponderance of the evidence the abortion was necessary to save
the life of the woman. This is not narrowly tailored to achieve the State’s
interests in women’s health and protecting unborn human life.

[¶31] Moreover, N.D.C.C. § 12.1-31-12 provides an affirmative defense only if
in the professional judgment of the physician the abortion was necessary to
prevent the death of the female. A pregnant woman is unable to obtain an
abortion in order to preserve her health, regardless of the potential health
consequences. Preserving the life or health of the woman necessarily includes
providing an abortion when necessary to prevent severe, life altering damage.
The United States District of Idaho explained the grave risks to health a
pregnant woman faces:

      Pregnant women in Idaho routinely arrive at emergency rooms
      experiencing severe complications. The patient might be spiking a
      fever, experiencing uterine cramping and chills, contractions,
      shortness of breath, or significant vaginal bleeding. The ER
      physician may diagnose her with, among other possibilities,
      traumatic placental abruption, preeclampsia, or a preterm
      premature rupture of the membranes. In those situations, the
      physician may be called upon to make complex, difficult decisions
      in a fast-moving, chaotic environment. She may conclude that the
      only way to prevent serious harm to the patient or save her life is
      to terminate the pregnancy—a devastating result for the doctor
      and the patient.

      ....


                                      14
      Yet if the physician does not perform the abortion, the pregnant
      patient faces grave risks to her health—such as severe sepsis
      requiring limb amputation, uncontrollable uterine hemorrhage
      requiring hysterectomy, kidney failure requiring lifelong dialysis,
      hypoxic brain injury, or even death. And this woman, if she lives,
      potentially may have to live the remainder of her life with
      significant disabilities and chronic medical conditions as a result
      of her pregnancy complication. All because Idaho law prohibited
      the physician from performing the abortion.

      Granted, the Idaho statute offers the physician the cold comfort of
      a narrow affirmative defense to avoid conviction. But only if she
      convinces a jury that, in her good faith medical judgment,
      performing the abortion was “necessary to prevent the death of the
      pregnant woman” can she possibly avoid conviction. Even then,
      there is no certainty a jury will acquit. And the physician cannot
      enjoy the benefit of this affirmative defense if she performed the
      abortion merely to prevent serious harm to the patient, rather
      than to save her life.

United States v. Idaho, 

, 1 (D. Idaho 2022). (Federal district
court analyzing the Idaho statute under the Emergency Medical Treatment &
Labor Act preemption.) A law that on its face criminalizes a life-preserving
abortion, infringes unnecessarily on a woman’s fundamental right to seek an
abortion to preserve her life or health, at least in part, cannot withstand strict
scrutiny.

[¶32] The State asserts N.D.C.C. § 12.1-31-12 is narrowly tailored because it
provides a “narrow” definition of abortion. Section 12.1-31-12 defines abortion
as follows:

      “Abortion” means the use or prescription of any substance, device,
      instrument, medicine, or drug to intentionally terminate the
      pregnancy of an individual known to be pregnant. The term does
      not include an act made with the intent to increase the probability
      of a live birth; preserve the life or health of a child after live birth;
      or remove a dead, unborn child who died as a result of a
      spontaneous miscarriage, an accidental trauma, or a criminal
      assault upon the pregnant female or her unborn child.

                                         15
N.D.C.C. § 12.1-31-12(1)(a). This definition is not narrowly tailored to women’s
health. Notably, the definition does not include abortions for ectopic
pregnancies, which is a pregnancy where the fertilized egg “does not implant
appropriately within the uterus” and is potentially lethal to the mother. 2 Am.
Law Med. Malp. § 13:6 (2022). Therefore, under the statutory construction of
N.D.C.C. § 12.1-31-12, an abortion to treat an ectopic pregnancy would be a
criminal act. As noted above, criminalizing life-preserving abortions is not
necessary to promote the State’s interests in women’s health and protecting
unborn human life.

[¶33] In sum, the history and traditions of North Dakota support the
conclusion that there is a fundamental right to receive an abortion to preserve
the life or the health of the mother. Thus, in order to withstand constitutional
scrutiny, N.D.C.C. § 12.1-31-12 must be necessary to promote a compelling
interest. As described above, the statute is not narrowly tailored to promote
women’s health and protect unborn human life. Therefore, N.D.C.C. § 12.1-31-
12 is unconstitutional, and RRWC has a substantial likelihood of succeeding
on the merits at least with respect to life or health preserving abortions.

                                       VI

[¶34] The second factor relevant to granting a preliminary injunction is the
irreparable injury a party will suffer in the absence of a preliminary injunction.

             An injury is irreparable when it cannot be adequately
      compensated in damages, and it is not necessary that the
      pecuniary damage be shown to be great. * * * Acts which result in
      a serious change of, or are destructive to, the property affected
      either physically or in the character in which it has been held or
      enjoyed, * * * do an irreparable injury * * *. 43 C.J.S., Injunctions,
      § 23, pp. 446, 447, 448.

Vorachek, 

 (quotations omitted) (quoting Viestenz v. Arthur
Twp., 

, 

 (1952)).

[¶35] RRWC argued if N.D.C.C. § 12.1-31-12 is allowed to be enforced during
the pendency of this litigation, irreparable damage will likely result from the

                                       16
potentially life-saving or injury avoiding abortions that will not be performed
at other healthcare facilities on an emergency basis. The irreparable injury to
the state is the irreversible loss of unborn human life. The death of unborn
children and the potential death or injury of a pregnant woman are both tragic.
While we may have found this factor neutral, under an abuse of discretion
standard we “will not reverse a district court’s decision merely because it is not
the one [we] would have made had it been [this Court] deciding the motion.”
Anderson v. Baker, 

, 

. The district court did
not abuse its discretion in determining RRWC would suffer a greater
irreparable injury than the State.

                                      VII

[¶36] The third factor relevant to granting a preliminary injunction is the
harm to other interested parties. RRWC argued if N.D.C.C. § 12.1-31-12 is not
enjoined, the women of North Dakota will face grave harm. The State argued
the citizens of North Dakota will face grave harm if N.D.C.C. § 12.1-31-12 is
enjoined, because the citizens of North Dakota have an interest in legislation
being enforced. The district court found RRWC’s arguments more persuasive,
finding N.D.C.C. § 12.1-31-12 has been lying dormant for almost 15 years and
the State failed to show how an additional delay would greatly harm any other
interested parties. The district court did not abuse its discretion determining
this factor weighed in RRWC’s favor because the district court did not act in an
arbitrary, unreasonable, or unconscionable manner in determining the lack of
an injunction would cause harm to other interested parties.

                                     VIII

[¶37] The final factor relevant to granting a preliminary injunction is the effect
on public interest. RRWC argued it is always in the public interest to protect
constitutional rights and abortion has been legal in North Dakota for 50 years.
The State argued that prior to Roe and Casey, North Dakota had a long
standing history of prohibiting abortions. The district court noted both
arguments were valid; however, the purpose of preliminary injunctions is to
maintain the status quo during the pendency of litigation and at this time the

                                       17
status quo in North Dakota is not to restrict or limit abortions in the manner
provided for in N.D.C.C. § 12.1-31-12.

[¶38] “[T]he purpose of a temporary or preliminary injunction ‘is to maintain
the cause in status quo until a trial on the merits.’” State v. Holecek, 

 (N.D. 1996) (quoting Gunsch v. Gunsch, 

(N.D. 1954)). Roe v. Wade, which found a constitutional right to an abortion
within the United States Constitution was decided in 1973. 

(1973). From 1973 until June 2022 the right to obtain an abortion, with some
restrictions, has been present nationwide and in North Dakota. After the
Dobbs decision overturned Roe, N.D.C.C. § 12.1-31-12 was not triggered before
the district court ordered the injunction. Therefore, the status quo in North
Dakota for 49 years has been to allow for abortion care. The district court
properly determined the status quo at this time is to generally allow abortion
care and thus to maintain that status quo until a trial on the merits is held,
N.D.C.C. § 12.1-31-12 should be temporarily enjoined from enforcement. The
district court did not act in an arbitrary, unreasonable, or unconscionable
manner in determining the effect of the public interest weighs in favor of
granting a preliminary injunction.

                                      IX

[¶39] The district court did not abuse its discretion in determining RRWC has
a substantial likelihood of succeeding on the merits, RRWC will suffer
irreparable injury, failure to enjoin N.D.C.C. § 12.1-31-12 will cause harm to
other interested parties, and it is in the public interest to enjoin enforcement
of N.D.C.C. § 12.1-31-12. The district court did not abuse its discretion in
granting the preliminary injunction.

                                      X

[¶40] The North Dakota Constitution guarantees North Dakota citizens the
right to enjoy and defend life and the right to pursue and obtain safety, which
necessarily includes a pregnant woman has a fundamental right to obtain an
abortion to preserve her life or her health. Thus, strict scrutiny analysis
applies, and RRWC has a substantial likelihood of demonstrating N.D.C.C. §
                                      18
12.1-31-12 is not narrowly tailored to achieve a compelling government
interest, at least in the limited instances of life-saving and health-preserving
circumstances. The district court did not abuse its discretion in granting the
preliminary injunction. We deny the requested relief and leave the preliminary
injunction in place.

[¶41] Jon J. Jensen, C.J.
      Daniel J. Crothers
      Lisa Fair McEvers
      Daniel D. Narum, D.J.

Tufte, Justice, concurring.

[¶42] I agree with the majority opinion, with the understanding that to reach
the result here, “life or health” need not be understood more broadly than its
application to the right of self-defense. Section 12.1-31-12, N.D.C.C., provides
only an affirmative defense and not an exception for abortion intended to save
a pregnant woman’s life. For that reason, there is a substantial probability it
is unconstitutional in violation of the right of self-defense protected by N.D.
Const. art. I, § 1. At this time we consider only the preliminary injunction, and
we need not decide the constitutionally necessary scope of any health
exception.

[¶43] The North Dakota Constitution guarantees the “inalienable right[ ] ... of
enjoying and defending life and liberty.” N.D. Const. art. I, § 1. Commonly, an
individual exercises this right of self-defense by responding to a threat of
imminent serious bodily injury or death with physical force. City of Jamestown
v. Kastet, 

, 

; State v. Olander, 

, 

. Where a pregnancy raises a similar threat of serious
bodily injury or death, the pregnant woman has a fundamental right to
preserve her life and health with the aid of a physician. Our recognition of this
fundamental right to preserve one’s life does not depend on resolving the
disputed point of pregnancy at which there are two lives that must be
considered. The State has a compelling interest in protecting unborn human
life, which RRWC does not dispute. Majority, at ¶ 29. We have long understood

                                       19
that a woman has an inalienable right to employ deadly force against another
person when necessary to protect herself against death or serious bodily injury.
State v. Leidholm, 

 (N.D. 1983); United States v. Leighton,

, 

, 348 (1882). Likewise, the State’s compelling interest
on behalf of an unborn child must yield to the pregnant woman’s right to abort
a pregnancy when necessary to preserve her life or health.

[¶44] If there is merely evidence sufficient to raise a reasonable doubt about a
self-defense claim, a defendant is entitled to a jury instruction on self-defense
and the State must prove the absence of self-defense as an element of the
offense beyond a reasonable doubt. Kastet, 

; Olander, 

; State v. Hazlett, 

 (N.D. 1907). Where an abortion
is performed in situations that fall within the constitutional right of self-
defense, section 12.1-31-12, N.D.C.C., unconstitutionally places the
evidentiary burden on the defendant to raise not merely a reasonable doubt,
but to prove an affirmative defense by a preponderance of the evidence. To that
extent, RRWC has demonstrated a substantial probability of success in
demonstrating N.D.C.C. § 12.1-31-12 is unconstitutional in violation of N.D.
Const. art. I, § 1.

[¶45] We do not decide here what scope of health risks may give rise to abortion
as medical self-defense. In the district court, the parties will have opportunity
to present historical evidence illuminating the meaning of Article I, § 1, and to
further develop their legal arguments. Before Roe v. Wade, 

 (1973),
restrictive abortion laws in North Dakota and nationwide uniformly
recognized exceptions for abortion intended to save the woman’s life. See
Eugene Volokh, Medical Self-Defense, Prohibited Experimental Therapies, and
Payment for Organs, 

, 1825 (2007) (“[T]he abortion-as-
self-defense right is largely uncontroversial, at least when threats to the
mother’s life, and not just to her psychological health, are involved: it was
accepted even in Chief Justice Rehnquist’s Roe dissent, [and] it was recognized
by all the restrictive abortion laws in effect when Roe was decided.”).

[¶46] There may or may not be sufficient historical evidence to support a
broader self-defense or other fundamental right implicated by the state’s
                                       20
abortion regulations. That question is not resolved here. Today our decision is
one of likely success on the merits necessary to support a preliminary
injunction. Before final resolution of the claims, the parties may present
historical evidence on the state constitution’s original meaning, both when
adopted in 1889 and when amended in 1984. The court also may receive further
legal argument about the meaning of Article I, § 1, and any rights guaranteed
by “necessary implication.” Black’s Law Dictionary 903 (11th ed. 2019); see also
Henry Campbell Black, A Dictionary of Law 806 (1st ed. 1891) (“so strong a
probability of intention that an intention contrary . . . cannot be supposed”). I
agree with Justice McEvers that Cooley’s treatise may well provide insight into
what the people who drafted and adopted our declaration of fundamental
rights meant by the words chosen and how they expected those words to be
interpreted by the courts. Thomas M. Cooley, A Treatise on the Constitutional
Limitations Which Rest Upon the Legislative Power of the States of the
American Union 45-47, ch. IV & VII (5th ed. 1883). If the district court enters
a permanent injunction, it may have to address questions of severability and
consider any amendments to the statute enacted while this matter is pending.
Also unresolved here is how the district court and this Court ultimately assess
the narrow tailoring requirement where there are two compelling interests and
it appears that the more narrowly tailored a statute is to protecting the life
and health of pregnant women, the less narrowly tailored it is to the State’s
interest in protecting unborn life, and vice versa.

[¶47] Jerod E. Tufte

McEvers, Justice, concurring specially.

[¶48] I agree with the majority to exercise our discretion to review and deny
the requested relief as set forth in the majority opinion, upholding the
injunction on narrow grounds. I write separately to explain how and why the
rights protected under the North Dakota Constitution may be broader than
those protected under the United States Constitution.

[¶49] The historical perspective leading to adopting our state constitution is
helpful to understand the difference between the state and federal

                                       21
constitutions. The prominent late nineteenth century American legal scholar
Thomas Cooley cautioned against mistaking a state constitution’s recognition
of a right as being the source of its creation:

            In considering State constitutions we must not commit the
      mistake of supposing that, because individual rights are guarded
      and protected by them, they must also be considered as owing their
      origin to them. These instruments measure the powers of the
      rulers, but they do not measure the rights of the governed.

Thomas M. Cooley, A Treatise on the Constitutional Limitations which Rest
upon the Legislative Power of the States of the American Union, *36 (2d ed.
1871). Professor Cooley explained a constitution “grants no rights to the
people,” but instead is “[d]esigned for their protection in the enjoyment of the
rights and powers which they possessed before the constitution was made.” Id.

[¶50] Professor Cooley also described the difference between the Constitution
of the United States and a state constitution:

             It is to be borne in mind, however, that there is a broad
      difference between the Constitution of the United States and the
      constitutions of States as regards the powers which may be
      exercised under them. The government of the United States is one
      of enumerated powers; the governments of the States are possessed
      of all general powers of legislation. When a law of Congress is
      assailed as void, we look in the national Constitution to see if the
      grant of specified powers is broad enough to embrace it; but when
      a State law is attacked on the same ground, it is presumably valid
      in any case, and this presumption is a conclusive one, unless in the
      Constitution of the United States or of the State we are able to
      discover that it is prohibited. We look in the Constitution of the
      United States for grants of legislative power, but in the
      constitution of the State to ascertain if any limitations have been
      imposed upon the complete power with which the legislative
      department of the State was vested in its creation. . . . That
      instrument has been aptly termed a legislative act by the people
      themselves in their sovereign capacity, and is therefore the
      paramount law. Its object is not to grant legislative power, but to
      confine and restrain it. Without constitutional limitations, the

                                      22
      power to make law would be absolute. These limitations are
      created and imposed by express words, or arise by necessary
      implication. . . . The executive can do no legislative act, nor the
      legislature any executive act, and neither can exercise judicial
      authority.

            It does not follow, however, that in every case the courts,
      before they set aside a law as invalid, must be able to find in the
      constitution some specific inhibition which has been disregarded,
      or some express command which has been disobeyed.

Cooley, supra, at *173-74 (italics in original; underlining added).

[¶51] Professor Cooley described certain rights as “fundamental,” specifically
noting “that all men are by nature free and independent, and have certain
inalienable rights, among which are those of enjoying and defending life and
liberty, acquiring, possessing, and protecting property, and pursuing and
obtaining safety and happiness.” Cooley, supra, at *35. Likely, it is no
coincidence that N.D. Const. art. I, § 1 identifies all of the natural and
inalienable rights identified by Professor Cooley with the same language he
used (except one word I discuss below). Professor Cooley addressed our
constitutional drafters on July 17, 1889, in Bismarck. See Official Report of the
Proceedings and Debates of the First Constitutional Convention of North
Dakota, 65-67 (1889). He told them they were setting out “guiding landmarks”
that will exist “probably for all time.” Id. at 65. He cautioned them “that times
change,” and he advised them not to “legislate too much.” Id. at 66-67. He said
“[t]ake care to put proper restrictions” on the legislature, “but at the same time
leave what properly belongs to the field of legislation” to future legislatures.
Id. at 67.

[¶52] Before he spoke to the constitutional convention, Professor Cooley wrote
in Constitutional Limitations it “is the peculiar province of the judicial
department,” as opposed to the legislature, “to adjudicate upon, and protect,
the rights and interests of individual citizens, and to that end to construe and
apply the laws.” Cooley, supra, at *90. Shortly before the constitutional
convention, the United States Supreme Court also discussed the duty of the

                                       23
judiciary in Boyd v. United States, 

 (1886), explaining courts
must be “watchful for the constitutional rights of the citizen, and against any
stealthy encroachment thereon.” Courts, it explained, must liberally construe
provisions protecting fundamental rights:

      [C]onstitutional provisions for the security of person and property
      should be liberally construed. A close and literal construction
      deprives them of half their efficacy, and leads to gradual
      depreciation of the right, as if it consisted more in sound than in
      substance.

 Based on this legal precedent, we can assume the drafters understood
courts would construe broadly descriptions protecting life, liberty, and security
of a person liberally. They nonetheless chose at the outset to enshrine broad
guarantees of freedom in N.D. Const. art. I, § 1.

[¶53] Although the drafters of our constitution adopted the words Professor
Cooley used, one has since changed. On November 6, 1984, the people of this
State approved an initiated measure that changed the word “men” in N.D.
Const. art. I, § 1 to the word “individuals.” See MKB Mgmt. Corp. v. Burdick,

, 

 (opinion of Kapsner, J.) (discussing the
amendment). The people clarified in writing what the drafters omitted—that
women are born with the same natural and inalienable rights as men. N.D.
Const. art. I, § 1.

[¶54] We view the question before us through this lens. Our reading of the
Constitution requires a recognition that the drafters did not set out to delineate
in Article I, § 1 the specific rights it protects and to exclude others. Rather, the
limitations placed on the legislature in Article I, § 1 arise by necessary
implication. By its nature, the Constitution was meant to “define the limits” of
the State’s exercise of power “so as to protect individual rights, and shield them
against the assumption of arbitrary power.” Cooley, supra, at *3. The rights
mentioned in Article I, § 1 are “among” those “certain inalienable rights” that
“all individuals” possess “by nature.” Id. For example, the Constitution does
not specifically identify a number of fundamental rights, and yet this Court
has recognized the same. See Hoff v. Berg, 

, 

285 (stating parents have a fundamental right to parent their children); State
ex rel. Schuetzle v. Vogel, 

 (N.D. 1995) (recognizing
liberty interest to refuse unwanted medical treatment); Johnson v. Elkin, 

 (N.D. 1978) (identifying liberty right to engage in ordinary
occupation without state regulation).

[¶55] While I agree, and have signed with the majority, I write separately to
recognize analysis of the state constitution will not always parallel analysis of
the federal constitution. See State v. Kordonowy, 

, 

 (“A state may grant greater protections than the United States
Constitution through its own constitution”); see also Riemers v. Eslinger, 

, 

 (same); State v. Nordquist, 

(N.D. 1981) (same); State v. Matthews, 

 (N.D. 1974) (same).
In addition, while we have only narrowly considered the fundamental right to
an abortion “at least in the limited instances of life-saving and health
preserving circumstances,” Majority, at ¶ 40, the district court is free to
consider whether additional fundamental rights are implicated by the statute
under N.D. Const. art. I, § 1, or any other constitutional provision. For
example, while the parties have not addressed N.D. Const. art. I, § 25, which
provides comprehensive constitutional rights for victims of crimes, the rights
found therein may be implicated nonetheless by N.D.C.C. § 12.1-31-12.

[¶56] Daniel J. Crothers
      Lisa Fair McEvers
      Daniel D. Narum, D.J.

[¶57] Justice Gerald W. VandeWalle was not a member of the Court when this
opinion was considered and did not participate in the decision. The Honorable
Daniel D. Narum, D.J., sitting in place of Bahr, J., disqualified.




                                       25