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Published April 18 2013

Judge says he'll rule 2011 ND abortion law unconstitutional

FARGO – A judge said Thursday he will permanently block a 2011 North Dakota law that would have limited drug-induced abortions, a decision the director of the state’s lone abortion clinic hopes will “pave the way” for future challenges in a state where lawmakers have adopted four anti-abortion laws this session alone.

At the conclusion of a three-day trial, Cass County District Court Judge Wickham Corwin told attorneys he will rule that all of the law’s provisions challenged by the Red River Women’s Clinic are unconstitutional.

Corwin said the trial did nothing to change the views he expressed in a memorandum of opinion in February 2012, in which he said the law, House Bill 1297, creates an “insurmountable barrier” to abortion for some women.

“I remain convinced that a woman’s reproductive rights must be protected under the state constitution and must be recognized as fundamental,” he said.

Corwin previously granted a temporary injunction to stop the law from taking effect Aug. 1, 2011.

Thursday, he called the legislation “simply wrong-headed,” saying it “does not logically address any concerns and it does nothing to promote women’s health.”

He said he will take the case under advisement and issue his final written opinion at a later date.

“I am going to ultimately rule that all of the challenged provisions are unconstitutional,” he said.

State appeal ‘very likely’

Attorney General Wayne Stenehjem said in an e-mailed statement that he appreciates and respects Corwin’s consideration, but it’s “very likely” the state will appeal his ruling to the North Dakota Supreme Court.

The issue “is clearly of sufficient magnitude that the final determination of the constitutionality of the statute should ultimately be made by the state’s highest court,” Stenehjem said in the statement.

Assistant Attorney General Douglas Anderson, who argued the state’s case, said he wasn’t surprised at how Corwin said he planned to rule after the trial, which focused on a few remaining areas of factual dispute in the case.

“I think that he was just trying to fill in some of the gaps,” he said.

Autumn Katz, an attorney for the New York-based Center for Reproductive Rights, which sued to block the law on behalf of the clinic, said the center is prepared to litigate the case as far as necessary.

While pleased with the trial’s outcome, Katz said it’s unfortunate that the current Legislature “seems to be treating women in North Dakota as second-class citizens and feels the need to deprive them of the rights that women in other states have.”

Gov. Jack Dalrymple has signed four anti-abortion bills approved by lawmakers this session, including a bill signed Tuesday that bans abortions after 20 weeks of pregnancy based on the disputed premise that a fetus can feel pain by that point.

“Those bills, like this bill, threaten women’s health and do nothing to protect women’s health,” Katz said.

Clinic director Tammi Kromenaker said the clinic has “full faith and confidence” in the center’s ability to do what it did this week in proving that abortion is “extremely safe” and a constitutional right.

“And I believe that will continue to pave the way for any future challenges,” she said.

Rep. Bette Grande, R-Fargo, who authored the law, said she’s not worried Corwin’s ruling will act as a catalyst to strike down the most recent anti-abortion bills.

“Each bill stands on its own merit,” she said.

Summations given

Katz argued in her final summation that while the law might not be an outright ban on medication abortion, it would act as a de facto ban by requiring the clinic to use an outdated protocol for one of the two drugs used in medication abortions.

The protocol, as stated on the U.S. Food and Drug Administration’s approved label for the drug, Mifeprex, would prevent women whose pregnancy is past 49 days from having a medication abortion. Currently, those 50 to 63 days pregnant also are eligible.

Katz said women eligible for the procedure would have to return to the clinic to take the second drug, misoprostol, as opposed to taking it at home under the current practice. She said that would put women in harm’s way because they begin to experience bleeding, cramping and other symptoms soon after ingesting the drug.

“Using a bathroom at a truck stop on the side of the road is neither safe nor private,” she said.

In addition to forcing patients and doctors to travel more, the law would increase the cost of a medication abortion by 40 percent for the clinic’s patients, about 40 percent of whom live at or below the poverty line, putting it “out of reach for many,” Katz said.

Anderson said the law may limit but doesn’t ban medication abortions, and it doesn’t rule out surgical abortion. He said the Legislature “set a baseline” by using the FDA-approved protocol as opposed to the clinic’s evidence-based regimen, which he said “may change tomorrow.”

“What I’m hearing is inconvenience. I’m not hearing substantial obstacle,” he said. “And it’s the state’s position that it passed legislation that reasonably addresses women’s health concerns, and the fact that one particular abortion clinic may not be able to meet those needs should not be the rule of the law.”

State’s witness testifies

The trial’s third day was marked by testy exchanges between the state’s expert medical witness, Dr. Donna Harrison, executive director of the American Association of Pro-Life Obstetricians and Gynecologists, and Janet Crepps, an attorney for Center for Reproductive Rights.

Harrison, of Eau Claire, Mich., cited a 2000-2006 study that followed all women in Finland who had abortions for up to 42 days after the procedure.

The study, which Harrison said is more reliable than U.S. studies because it included women’s complete medical records held by Finland’s state-run health care system, found that both surgical and medication abortions are generally safe, but the overall incidence of adverse events was fourfold higher in medication abortions.

“This very accurate, large, registry-based study clearly shows that medical abortion has a higher overall risk of adverse events ... than surgical abortion,” she said of the study conducted by the Department of Obstetrics and Gynecology at Finland’s Oulu University Hospital.

But on cross-examination, Harrison acknowledged that the study didn’t describe the drug regimens used and that it noted no difference in infection rates between the two abortion methods.

Crepps also called Harrison’s credibility into question by pointing out that while she relied on the Finnish study in her testimony, she said in an earlier deposition that the study’s authors referred to both abortion methods as “generally safe” so the study would be published.

Harrison also said it’s “not at all unreasonable” for the law to require that doctors who give abortion drugs have a signed contract with another doctor to handle emergencies arising from the procedure, contrasting the testimony Wednesday from a Fargo obstetrician-gynecologist.

Crepps cut off Harrison several times when her answers went long, telling her at one point, “Doctor, there’s no question pending, so you can’t actually keep going,” and, “You are not qualified to answer questions about what the state of North Dakota has determined.”

Before the trial started, the attorney general’s office had paid Harrison $20,800 for her services as an expert witness, accounting for most of the $22,975 the office had spent on the case, according to figures provided by the office.


Forum News Service reporter TJ Jerke contributed to this article.

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