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TJ Jerke, Forum News Service, Published May 29 2013

ND attorney general challenges added complaint in abortion case

BISMARCK – A district court judge who verbally committed last month to upholding a lawsuit challenging a 2011 abortion law should not allow a supplemental complaint to be added to the suit before he officially rules on the case, the attorney general’s office said Wednesday.

Judge Wickham Corwin of the East Central Judicial District in Fargo said after a three-day trial that he will strike down as unconstitutional a 2011 law that sought to prohibit medication for abortions.

On May 15, the Center for Reproductive Rights, legal counsel for the state’s only abortion clinic in Fargo, asked that Corwin add a supplemental complaint to the 2011 lawsuit to stop a recently passed law from taking effect Aug. 1. The new law requires abortion-performing doctors to have admitting privileges at a hospital within 30 miles of the clinic.

The center’s complaint contends that the 2013 law is unconstitutional because it violates the Red River Women’s Clinic’s rights by imposing a medically unwarranted requirement on its physicians while infringing on a woman’s right to choose to have an abortion since the clinic cannot meet the law’s requirements and would effectively be shut down if the law takes effect.

The attorney general’s office had two weeks to file a response as to whether Corwin should accept the supplemental complaint. The response was filed Wednesday afternoon.

The response argues that Corwin should not accept the supplemental complaint because it is attempting to improperly introduce a separate and new lawsuit, placing prejudice toward the state, and will unnecessarily delay or inconvenience the 2011 lawsuit.

“This case is all but done,” the response says. “Granting the plaintiffs’ motion will improperly and unnecessarily delay resolution of this case for months and possibly years while the parties conduct discovery, file motions, and prepare and attend trial regarding facts that are separate, distinct, and unrelated to the original cause of action.”

The complaint cites a rule under the North Dakota Rules of Civil Procedure that says, “... a supplemental pleading is designed to cover subsequently occurring matters pertaining to the original cause.”

The attorney general’s office says the complaint does not pertain to the original case, and by adding it to the 2011 case, it will delay the original lawsuit. The state is awaiting the formal decision so it can appeal it to the state Supreme Court.

“The state wants to get the case resolved. We want to get to the Supreme Court and let them rule on the legal issues and be done,” said Assistant Attorney General Douglas Anderson. “By adding a whole separate case just prolongs that and we believe prejudices the state.”

In the center’s motion in support of its supplemental complaint, it says the 2011 and 2013 laws carry the same legal and factual matters. The 2011 law would have required an abortion-performing doctor to enter into a written contract with another physician to provide emergency backup for medication abortion patients if hospitalization was required.

The supplemental complaint argues that this is much like the 2013 law requiring all physicians to obtain admitting privileges.

The response also says that adding the complaint “would be premature and may prove futile,” as a group in Grand Forks is collecting signatures to refer the law to a statewide vote. The petition must be filed by June 24 with 13,452 signatures to be placed on the 2014 ballot.

“It seems inappropriate to delay the resolution of the case that has already been tried when the other case may not need to be tried,” Anderson said.

The response says if the court does allow the supplemental complaint, “it may still deny the motion if it finds undue delay, bad faith, dilatory tactics, undue prejudice to the party to be served with the proposed pleading, or futility.”