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TJ Jerke, Forum News Service, Published March 22 2013

Cost of defending North Dakota abortion laws could add up quickly

BISMARCK – Gov. Jack Dalrymple’s signature on what would be among the strictest abortion laws in the country could cost the state hundreds of thousands, if not millions, of dollars defending the laws in court.

Activists favoring legalized abortion say the pending laws in North Dakota would likely put the state into a lawsuit, arguing that they violate the U.S. Supreme Court’s 1973 Roe v. Wade decision, which ruled that abortions are legal up until the point of viability outside the womb, or about 24 weeks.

For an example of what an abortion law battle might cost, North Dakota needs only to look to its neighbor to the south.

South Dakota Gov. Dennis Daugaard’s budget proposal for 2012 asked for the Legislature to add

$1 million to its legal defense fund, which was approved, knowing it would have to face a lawsuit over a law requiring a three-day waiting period for women seeking abortions.

The South Dakota Attorney General’s Office told the Sioux Falls Argus Leader in September 2011 that it estimated legal challenges to that law could cost $1.75 million to $4.15 million.

Pam Sharp, director of North Dakota’s Office of Management and Budget, said there hasn’t been any reason to establish a fund, especially since the office can request funding from the state’s Emergency Commission.

“Up until now it hasn’t been an issue. The attorney general’s office has worked within its authority,” Sharp said.

But with a current balance of $30,000 in the attorney general’s budget for litigation fees, and a request only for the office’s usual $50,000 biennium appropriation for those fees, some wonder whether the state is addressing the fiscal impact that court battles could bring.

The attorney general’s office was given $142,000 in November from the state’s Contingency Fund, used during the interim in case cash begins to dry up.

North Dakota does have a Risk Management Fund under the budget office, but it only covers tort, or civil, claims or litigation brought against the state. It does not cover a constitutional challenge.

Some lawmakers argued that money to fight a court battle needs to be attached to the abortion bills.

Sen. Ray Holmberg, R-Grand Forks, chairman of the Senate Appropriations Committee, said it’s difficult to put state funding behind individual pieces of legislation because the Legislature doesn’t know what the court costs may be.

“You can’t try to second guess every issue because we don’t know,” he said.

South Dakota established its Extraordinary Litigation Fund in 2006, which covers the cost of outside counsel, settlement costs and other fees.

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