In a split decision issued in late November, the North Dakota Supreme Court upheld the state’s strict abortion ban, which the court had blocked for nearly a year. This case is a stark reminder that, even though some courts have acknowledged that state constitutional tradition and history necessitate the protection of reproductive rights, old injustices will prevail again today if originalism prevails.
A previous North Dakota Supreme Court decision said the law was likely unconstitutional, vague, and insufficient to protect North Dakotans’ fundamental rights to life, safety, and health. But when the appeal on the merits reached the court, two of the five justices doubled down on the historically focused test. Dobbs v. Jackson Women’s Health Organization. The two justices’ opinions determined the outcome, since North Dakota requires a majority of the court to rule that a law is unconstitutional in order to repeal it.
Originalist approaches to reproductive freedom
law challenged in Access to Independent Health Services vs. Wrigley The law makes it a crime for anyone to perform an abortion unless it is deemed necessary according to objective “reasonable medical judgment” to prevent death or a “serious health risk” to the pregnant person. The penalty is up to five years in prison and a $10,000 fine. Abortion providers challenged the law, arguing that it was unconstitutional, vague, and violated their due process rights by not making sufficiently clear when abortions could be performed to protect a patient’s health under the law’s exceptions. Providers also argued that the law violates pregnant women’s rights under the state’s natural rights provisions, which guarantee the right to “enjoy and defend life and liberty” and “pursue and obtain security and happiness.”
Although their view was not upheld, the three-judge majority reasoned that because the law implied a constitutional right and had a chilling effect on protected conduct, the plaintiffs could raise an ambiguous claim on its face: that the law was unconstitutional at the time it was passed. Specifically, the majority concluded that the health risk exception to this ban “undoubtedly” implicates previously recognized fundamental rights by defining when a pregnant woman’s life and health are “sufficiently at risk” to justify abortion.
The report found that the combined effects of the exception’s objective reasonableness standard (which does not necessarily protect providers who use their best medical judgment to determine that an abortion is necessary) and the threat of harsh criminal penalties create a significant risk of discouraging constitutionally protected care. Indeed, as the majority opinion details, extensive documentary evidence shows that health care providers disagree, and even the state’s own witnesses are confused about the meaning of the law, including what constitutes a health risk serious enough to warrant intervention. Invoking the constitutional avoidance doctrine, the majority stopped short of reaching a further lower court ruling that the ban “violates women’s fundamental rights to reproductive autonomy,” “liberty,” and “the pursuit and acquisition of security and happiness.”
Once the threshold was reached, the dissenting justices disagreed with the majority’s approach to the question of facial vagueness, holding instead that outside the context of First Amendment rights, the law could be upheld unless there was a set of circumstances in which the law would be constitutionally applicable. Opponents acknowledged the ban cleared that low bar.
But the opposition went further, solidifying the rights of North Dakotans in how the Constitution adopted in 1889 was understood, defining the scope of the right to “protect life” and the right to “obtain security” very narrowly. Opponents primarily pointed to laws criminalizing abortion before and at the time of the state’s inauguration, suggesting that the right to an abortion existed only if it was necessary to save the life of a pregnant person. In doing so, opponents largely ignored the broader and more protective right to pursue and obtain health recognized by the majority.
While acknowledging that other state courts have interpreted state constitutions that include similar natural rights provisions to protect abortion more broadly, the New Jersey Supreme Court, for example, Right to Choose v. Byrne — Opponents concluded, without explanation, that these cases were not instructive. As the Constitutional Accountability Center emphasized in its court brief, “New Jersey’s Natural Rights Clause is particularly useful not only because it is nearly identical to North Dakota’s Inalienable Rights Clause, but also because it was available to the Clause’s framers in 1889.”
historical bias
Without North Dakota’s supermajority control, the majority opinion would have required repeal of this vague law. Instead, the two great justices control dissenting opinions. While it is still possible that patients and health care providers could challenge the abortion ban once it takes effect, currently pregnant North Dakotans face an abortion ban with exceptions that are too vague and narrow to be implemented in practice. As seen in other states, confusion about the medical care permitted under abortion bans can result in delays or denials of vital health care and ultimately preventable deaths.
It is difficult to overlook the gender inequities built into the dissent’s reasoning and results. Especially if it relied on one of the court’s decisions in 1900., It explains, “‘If the miscarriage was not necessary to save the woman’s life, a guilty verdict may be returned, regardless of the motive controlling the defendant.'” The case is one of the few that opponents point to as evidence that the “founding people” at the time of the state’s formation did not believe that women had a natural right to terminate a pregnancy unless it was a “last resort” for survival or to prevent serious bodily harm. This approach dobbslinks current rights to a historical period when women and others were excluded from political participation and denied individual autonomy.
This means that past injustices should not be reflected in judicial decision-making or interpretation of constitutional rights. Recent decisions from state high courts in Kansas, Pennsylvania, and Utah show that historical evidence is only a starting point and need not prevent courts from interpreting state constitutions to protect abortion and related rights. Considering a state’s unique constitutional history and tradition, courts can identify founding principles such as guarantees of personal autonomy, bodily integrity, privacy, and the ability to make family decisions and apply them equally to all individuals, rather than being bound by historical bias.
the momentum of progress slows down
results in Access to independent medical services It undermines the more progressive momentum set by the North Dakota Supreme Court’s 2023 ruling. wrigley vs romanik. in romanticthe court affirmed a preliminary injunction against an earlier version of the state’s anti-abortion law that went into effect to criminalize all abortions (providing only a narrow affirmative defense). dobbs It was determined that there was no federal constitutional right to abortion.
The court reviewed North Dakota’s historical abortion regulations and medical practices and concluded that, consistent with that history, the state constitution’s provisions guaranteeing the right to “enjoy and defend life” and “to seek and obtain safety” implicitly include the right to obtain an abortion to protect the life or health of the pregnant person.
after that romantic The decision remanded the case, and the Legislature repealed the challenged law and replaced the affirmative defense with a modified exception. The lower court is Access to independent medical services It declared the new law unconstitutional, vague and infringing on the right to life, liberty, happiness and security. The parties returned to the high court with Amici scholars and constitutional experts weighing in on the history and scope of North Dakota’s natural rights provisions.
The final historical analysis of this day shows that the fight against originalism is an urgent project, but not an easy one. Legal scholars need advocates, experts, and scholars to help unearth, contextualize, and understand the law. all Relevant historical evidence – goes beyond the state’s earliest laws enforced by people who lived hundreds of years ago.
That’s why our Center for Reproductive Health, Law, and Policy has created “A History of Reproductive Rights Litigation: A History of Post-Reproductive Rights Litigation.”dobbs Resource hub. ” This resource collects summaries and links to notable court decisions, court briefs, expert reports, and academic research to support critical approaches to history and inform interpretations of state constitutions that secure stronger reproductive rights for future generations.
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This latest high court decision is tragic for the people of North Dakota, tying today’s abortion rights to past criminal prohibitions. But that’s not what we’re aiming for. Voters in 10 states have enacted reproductive freedom amendments, and court decisions in other sister states protect reproductive rights. As Wisconsin Supreme Court Chief Justice Jill Karofsky wrote in a concurrence agreement in which she agreed that the 1849 criminal abortion law can no longer be enforced, the abortion ban is a relic of a world that “must be left behind” in order to “remain on the side of a history that values the health and well-being of all people.”
Diana Kasdan is director of legal affairs and policy at UCLA Law’s Center for Reproductive Health, Law, and Policy.
Amanda Barrow is a senior staff attorney in the Center for Reproductive Health, Law, and Policy at UCLA Law.
Recommended citation: Diana Kasdan and Amanda Barrow, How originalism reinstated abortion ban; majority of North Dakota Supreme Court rules unconstitutionalSᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (December 8, 2025), https://statecourtreport.org/our-work/analysis-opinion/how-originalism-revived-abortion-ban-majority-north-dakota-supreme-court
