Mary Steurer, North Dakota Monitor

North Dakota’s abortion ban was officially repealed Thursday following a judgment entered by South Central District Court Judge Bruce Romanick.

“The law as currently drafted takes away a woman’s fundamental rights to liberty and her fundamental right to pursue and abstain safety and happiness,” he wrote in the judgment. “The law also impermissibly infringes on the constitutional rights for victims of crimes.”

Romanick was asked to review the ban as part of a lawsuit brought by Red River Women’s Clinic — once North Dakota’s only abortion clinic before it moved to Moorhead, Minnesota— and a group of reproductive health care doctors.

North Dakota judge vacates state abortion ban, ruling it unconstitutional

Tammi Kromenaker, the clinic’s director, said the facility has “no plans to move back to North Dakota.”

The clinic used to operate in Fargo but moved across state lines when North Dakota’s previous abortion ban took effect following the U.S. Supreme Court’s decision to repeal Roe v. Wade.

“Having moved once was already a huge upheaval and drain on our resources. We are 5 minutes away from our former location in downtown Fargo, which means that access for our patients is essentially the same,” Kromenaker wrote in a Thursday statement to the North Dakota Monitor.

She noted that other North Dakota regulations, “including a 24-hour waiting period, restrictions on medication abortion, forced state materials designed to dissuade patients from abortion, strict parental involvement laws and more,” still make abortion care difficult to provide in the state.

“We would not take a step back and subject our patients to these stigmatizing and difficult restrictions,” she wrote. “We moved once and do not want to undertake that again.”

The court judgment came two weeks after Romanick found the abortion ban unconstitutionally vague and a violation of health care rights.

The law made all abortions illegal except when the pregnancy poses a serious health risk to the mother, and in cases of rape or incest during the first six weeks of a pregnancy.

Plaintiffs argued the law infringed on individual rights and endangered pregnant mothers by not making it clear when abortions may be administered under the health risk exemption.

In his Sept. 12 order, Romanick found that the criminal penalties included in the law could deter doctors from providing abortions for legitimate health reasons.

He also questioned how doctors could determine whether patients are eligible for the rape and incest exemption, given that they do not have legal expertise and that sex crimes are notoriously difficult to investigate.

Attorneys for the state have previously argued that the ban is not vague, and was written with input from North Dakota doctors, including some of the plaintiffs.

The law was adopted with overwhelming support by the state’s Republican-majority Legislature in 2023 following a ruling by the North Dakota Supreme Court finding its previous abortion ban unconstitutional.

Attorney General Drew Wrigley has previously said the state plans to appeal Romanick’s ruling.

Following Romanick’s Sept. 12 order, the North Dakota Attorney General’s Office filed a motion asking Romanick to keep the abortion ban on the books until the North Dakota Supreme Court makes a final decision on the case.

Romanick will hear arguments on the motion at 9 a.m. Oct. 10 in Bismarck, according to court records filed Thursday.

This story was updated to add comment from the Red River Women’s Clinic director.

North Dakota Monitor is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. North Dakota Monitor maintains editorial independence. Contact Editor Amy Dalrymple for questions: info@northdakotamonitor.com. Follow North Dakota Monitor on Facebook and X.

A North Dakota judge on Monday granted a request by the Catholic Diocese of Bismarck and a Catholic employers association to temporarily block the Equal Employment Opportunity Commission from enforcing part of its anti-discrimination regulations related to abortion, fertility treatment and LGBTQ workers.

The decision by U.S. District Court Judge Daniel Traynor, which blasts the regulations as “clearly anti-religion,” came less than a week after he heard arguments on the motion in federal court in Bismarck.

“Time and again the First Amendment rights of American citizens has been the subject of litigation (in) federal court,” he wrote in a footnote included in the order. “Organizations must continually sue to keep the federal government from infringing on basic and well-settled rights to freedom of religion.”

North Dakota Catholic diocese challenges federal rules on abortion, IVF

The case challenges provisions in two documents recently published by the EEOC: a rule implementing the Pregnant Workers Fairness Act, as well as non-binding guidance on Title VII of the Civil Rights Act of 1964, which outlaws workplace discrimination.

The Pregnant Workers Fairness Act, signed into law by President Joe Biden in 2022, requires employers to provide certain workplace accommodations for pregnant and postpartum mothers. The EEOC’s rule executing the act also included protections for people who seek abortions or fertility treatment — which the diocese and Catholic Benefits Association argues was never Congress’ intent.

Since abortion and in-vitro fertilization are against the Catholic Church’s teachings, plaintiffs say the rule also violates their First Amendment rights. The rule doesn’t include a blanket exemption for religious employers, but the EEOC instead says it will handle religious exemption claims on a case-by-case basis.

“We’re living in fear that we’ll go through thousands of enforcement actions,” Andrew Nussbaum, an attorney for the plaintiffs, said during last week’s hearing.

The EEOC’s April guidance, meanwhile, puts employers on notice that harassment based on reproductive health care decisions — including abortion, fertility and contraception — as well as sexual orientation and gender identity could now be considered sex discrimination under Title VII.

This also conflicts with plaintiffs’ beliefs, as the Catholic Church teaches against “abortion, artificial insemination, in vitro fertilization, gender ideology, ‘transgender affirmation through use of false pronouns,’ and ‘improper access to single sex spaces,’” Traynor notes in his order, quoting from the plaintiffs’ complaint.

Abortion included in pregnant workers protections law

The EEOC has said both the rule and the guidance are consistent with previous interpretations of Title VII by the commission and the courts.

Attorneys for the EEOC argued in court last week that the plaintiffs did not have standing to bring the lawsuit, claiming that the diocese and association haven’t demonstrated they are likely to face discrimination claims under the regulations, and that the Catholic Benefits Association does not have the authority to bring the lawsuit on behalf of unidentified members. They also said that the diocese and association are improperly singling out the EEOC when discrimination claims can also be brought under the Pregnant Workers Fairness Act and Title VII without the federal agency’s involvement.

Traynor found that because employers can face legal consequences for not complying with the regulations, the Pregnant Workers Fairness Act rule and the guidance “place a substantial burden” on the plaintiffs’ religious exercise.

He also wrote that the EEOC did not sufficiently establish that the government has a compelling interest in leaving the regulations in place, or that it took adequate care to minimize burdens to religious organizations when writing the rule and guidance.

Under the order, current and future members of the Catholic Benefits Association, including the diocese, will be shielded from enforcement action under the challenged portions of the rule and Title VII while the lawsuit proceeds.

Traynor was appointed to the federal bench by former President Donald Trump. He served on the board for the North Dakota Catholic Conference from 1999-2001, according to a questionnaire for judicial nominees.

North Dakota Monitor is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. North Dakota Monitor maintains editorial independence. Contact Editor Amy Dalrymple for questions: info@northdakotamonitor.com. Follow North Dakota Monitor on Facebook and X.