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Published April 14 2013

Challenge to 2011 abortion law goes to trial this week

FARGO – As the abortion debate spotlight shines on North Dakota, the state’s only clinic that provides abortions will go to court this week to challenge a 2011 law it claims would effectively ban medication abortions.

The trial is scheduled for four days starting Tuesday in Cass County District Court in Fargo.

The New York-based Center for Reproductive Rights sued to block the law on behalf of the Red River Women’s Clinic and its medical director, Dr. Kathryn Eggleston, on July 18, 2011.

Three days later, Judge Wickham Corwin granted a temporary injunction to stop the law from taking effect on Aug. 1, 2011.

This week’s trial will unfold with the abortion debate in North Dakota at a fever pitch following the Legislature’s passage of three anti-abortion bills, all signed into law by Gov. Jack Dalrymple in March. A fourth anti-abortion bill was passed by the House Friday and sent to Dalrymple for his signature.

Abortion rights advocates have vowed to challenge the laws on constitutional grounds, and a group of North Dakota residents plans to circulate a petition to try to put the laws to a statewide vote.

Autumn Katz, the Center for Reproductive Rights attorney who will argue the plaintiffs’ case, said she believes the trial “may be more on the (national) radar given what North Dakota has done this legislative session.

“And I think it just kind of shows that this law was just one of many,” she said Friday from New York. “I mean, it’s basically an avalanche of attacks on women’s reproductive rights.”

Katz and the plaintiffs’ six other attorneys argue in their pre-trial brief that the 2011 law passed by the Legislature and signed by Dalrymple unconstitutionally infringes on a woman’s right to an abortion and would “eliminate the safe and effective alternative to surgical abortion.”

“This law would prevent women from accessing a very safe method of early pregnancy termination,” Katz said. “And we feel like limiting women’s medical options, especially for some women where forcing them to have a surgical procedure would be medically inadvisable, is both harmful to women and it’s unconstitutional.”

“We think the state constitution protects a woman’s right to access abortion services, and we’re confident that the courts will agree with us.”

Assistant Attorney General Douglas Anderson said it’s the state’s position that the law is “one additional means of protecting the health and safety of the women involved in the matter.”

The law in question, part of House Bill 1297, would make it illegal to prescribe an abortion-inducing drug unless it “satisfies the protocol tested and authorized” by the U.S. Food and Drug Administration and is labeled for that purpose.

Only one of the two drugs used in combination for medication abortions at the Fargo clinic, Mifeprex, is labeled for that use.

The other drug, misoprostol, is labeled for treatment of gastric ulcers.

“This is a drug that does have recognized risks, and it’s one means of controlling the use of that drug,” Anderson said of the law.

The law’s author, Rep. Bette Grande, R-Fargo, said it’s meant to ensure that FDA regulations for medication are followed.

“Now, if they use off-label drugs and they don’t follow the FDA, then that’s an issue for them, not for what we have asked for,” she said. “We’ve asked for safe procedures to be used for the women who go to the clinic, and FDA sets those guidelines.”

But the lawsuit says it’s common practice for doctors to prescribe drugs off-label, in dosages and for medical uses not approved by the FDA for marketing purposes. When medical evidence supports such use, “it is consistent with the standard of care,” the lawsuit says, noting almost all medication abortions provided in the U.S. use an off-label, evidence-based regimen.

“I think it shows that the real purpose here is not to protect women, which is what has been claimed, but I think the real purpose is to keep women from accessing safe and legal health care services in the state of North Dakota,” Katz said. “And I think it’s unfortunate that women in North Dakota have to keep going to court in order to make sure that they’re constitutionally protected rights remain protected.”

Safety is key issue

The Fargo clinic offers medication abortions through seven weeks of pregnancy, and surgical abortions from four to five weeks through 16 weeks, the lawsuit says.

About 20 percent of the clinic’s abortion patients choose medication abortion, which the center says became widely available in the United States in the year 2000.

Many prefer the privacy it allows, while others prefer a less-invasive procedure or wish to avoid anesthesia, the suit says.

Medication abortions successfully terminate the pregnancy in nearly all cases at the clinic, the suit says. In the roughly 0.6 percent of cases in which it doesn’t work, the clinic provides a surgical abortion, the suit says.

Katz said the plaintiffs are confident heading into the trial, given Corwin’s rulings so far in the case.

In a February 2012 ruling that kept the injunction in place, Corwin said the evidence suggests most medical abortions are safe and effective for early term pregnancies and that the state didn’t show compelling reasons for regulating the procedure.

“In fact, the evidence that we will put on at trial will show that doing so would be harmful to many women,” Katz said.

Anderson said he doesn’t like to predict trial outcomes.

“I believe that we will have evidence that does put into question the protocol that’s followed by the clinic,” he said.

Grande said medication abortions are unsafe if not done properly, “and that’s what this bill says, is we want it to be done properly.”

She quickly added: “They may consider it safer for the mother when it’s done according to the rules and guidelines. I don’t feel that it’s ever safe for the unborn child, but I’m looking for the health and safety of the mother.”

Trial scope limited

Court documents show the plaintiffs plan to call at least four witnesses, including Eggleston and the clinic’s director, Tammi Kromenaker, to establish that medication abortion is safe and effective.

Named as defendants in the case are Cass County State’s Attorney Birch Burdick and Dr. Terry Dwelle, chief administrator of the state’s Department of Health.

According to Liz Brocker, spokeswoman for the North Dakota Attorney General’s Office, the state has spent between $22,000 and $23,000 litigating the case through Friday. She didn’t have an estimate for how much it would cost to defend the law in this week’s trial.

The state plans to call one witness: Dr. Donna Harrison, an obstetrician and gynecologist from Eau Claire, Mich. Anderson has indicated she will testify in support of the protocol required by the law, including addressing the health risks posed by the drug regimen used by the Fargo clinic in medication abortions.

Anderson said the legal arguments in the case have already been raised, and the purpose of the trial is to delve more deeply into matters of factual dispute, which he listed in his pretrial brief as:

•The current medical knowledge about the safety and efficacy of medication abortions and whether the law’s restrictions are necessary to promote women’s health.

•The medical justification for the law’s requirement that any physician performing medical abortions must enter into an exclusive emergency services contract with another physician.

•The competing benefits and burdens resulting from the law’s requirement that the prescribing doctor be in the same room whenever an abortion-inducing drug is administered.

Attorneys for both sides said they don’t expect Corwin to issue a ruling from the bench immediately after the trial.

Readers can reach Forum reporter Mike Nowatzki at (701) 241-5528