IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2023 ND 50

Drew H. Wrigley, in his official capacity as

Attorney General for the State of North

Dakota, Petitioner

v.

The Honorable Bruce A. Romanick, Judge of 

the District Court, South Central Judicial 

District; Access Independent Health Services, Inc.,

d/b/a Red River Women’s Clinic, on behalf

of itself and its patients, and Kathryn L.

Eggleston, M.D., on behalf of herself and her

patients; and Birch P. Burdick, in his official

capacity as the State’s Attorney for Cass

County, Respondents

No. 20220260

Petition for Supervisory Writ.

REVIEW GRANTED AND RELIEF DENIED.

Opinion of the Court by Jensen, Chief Justice, in which Justices Crothers, 

McEvers, and District Judge Narum joined. Justice Tufte filed a concurring 

opinion. Justice McEvers filed an opinion concurring specially, in which Justice 

Crothers and District Judge Narum joined.

Matthew A. Sagsveen (argued), Solicitor General, and Courtney R. Titus

(appeared), Assistant Attorney General, Bismarck, ND, for petitioner.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

MARCH 16, 2023 

STATE OF NORTH DAKOTA
Meetra Mehdizadeh (argued), Luna Barrington (on brief), Lauren Bernstein 

(on brief), Melissa Rutman (on brief), Colin McGrath (on brief), Naz Akyol (on 

brief), Alexandra Blankman (on brief), Cassandra D’Alesandro (on brief), Liz 

Grefrath (on brief), and Lauren Kelly (on brief), New York, NY, and Christina 

A. Sambor (appeared), Bismarck, ND, for respondents Access Independent 

Health Services, Inc., d/b/a Red River Women’s Clinic, on behalf of itself and 

its patients, and Kathryn L. Eggleston, M.D., on behalf of herself and her 

patients.

Christopher T. Dodson, Bismarck, ND, and Paul B. Linton, Northbrook, IL, for

amicus curiae North Dakota Catholic Conference.

Elizabeth A. Elsberry and Christopher E. Rausch, Bismarck, ND, and Jocelyn 

Keider, Boston, MA, and Molly A. Meegan and Kimberly A. Parker, 

Washington, DC, for amicus curiae American College of Obstetricians and 

Gynecologists, American Medical Association, and Society for Maternal-Fetal 

Medicine.
1

Wrigley v. Romanick

No. 20220260

Jensen, Chief Justice.

[¶1] North Dakota Attorney General Drew Wrigley, on behalf of the State of 

North Dakota (“the State”), seeks a supervisory writ to vacate the district 

court’s order granting a preliminary injunction enjoining enforcement of 

N.D.C.C. § 12.1-31-12. The injunction was granted in Access Indep. Health 

Servs., Inc., et al. v. Drew H. Wrigley, et al., Burleigh Co. Court No. 2022-CV01608. The State argues the district court abused its discretion in granting the 

injunction because Access Independent Health Services, Inc., d/b/a Red River 

Women’s Clinic (“RRWC”) and the other plaintiffs failed to prove (1) they have 

a substantial likelihood of success on the merits, (2) they will suffer irreparable 

injury, (3) there will be harm to other interested parties, and (4) the effect on 

the public interest weighs in favor of granting a preliminary injunction. While 

the regulation of abortion is within the authority of the legislature under the 

North Dakota Constitution, RRWC has demonstrated likely success on the 

merits that there is a fundamental right to an abortion in the limited instances 

of life-saving and health-preserving circumstances, and the statute is not

narrowly tailored to satisfy strict scrutiny. We grant the requested review, deny 

the relief requested in the petition, and leave in place the order granting a 

preliminary injunction.

I

[¶2] RRWC filed a motion for a temporary restraining order and preliminary 

injunction, seeking to enjoin enforcement of N.D.C.C. § 12.1-31-12 which reads 

as follows:

1. As used in this section:

a. “Abortion” means the use or prescription of any 

substance, device, instrument, medicine, or drug to 

intentionally terminate the pregnancy of an individual 

known to be pregnant. The term does not include an 

act made with the intent to increase the probability of 

a live birth; preserve the life or health of a child after 
2

live birth; or remove a dead, unborn child who died as 

a result of a spontaneous miscarriage, an accidental 

trauma, or a criminal assault upon the pregnant 

female or her unborn child.

b. “Physician” means an individual licensed to practice 

medicine under chapter 43-17.

c. “Professional judgment” means a medical judgment 

that would be made by a reasonably prudent physician 

who is knowledgeable about the case and the 

treatment possibilities with respect to the medical 

conditions involved.

2. It is a class C felony for a person, other than the pregnant 

female upon whom the abortion was performed, to perform 

an abortion.

3. The following are affirmative defenses under this section:

a. That the abortion was necessary in professional 

judgment and was intended to prevent the death of the 

pregnant female.

b. That the abortion was to terminate a pregnancy that 

resulted from gross sexual imposition, sexual 

imposition, sexual abuse of a ward, or incest, as those 

offenses are defined in chapter 12.1-20.

c. That the individual was acting within the scope of that 

individual’s regulated profession and under the 

direction of or at the direction of a physician.

[¶3] The district court granted the motion for a temporary restraining order 

and preliminary injunction. The State requested this Court exercise 

supervisory jurisdiction to grant a writ, requiring the district court vacate the 

preliminary injunction asserting, in part, that the district court had failed to 

determine whether RRWC had a substantial likelihood of success on the merits 

of its claim, a prerequisite to granting a preliminary injunction. This Court 

granted the State’s request in part, directing the district court to determine 

RRWC’s substantial likelihood of success on the merits of its cause of action 

and thereafter reconsider whether a preliminary injunction was appropriate.

[¶4] The district court conducted further analysis on whether RRWC had a 

substantial likelihood of success on the merits and held RRWC had a 

substantial likelihood of prevailing in the litigation. The court concluded that 
3

continuation of the preliminary injunction was necessary. This Court now

considers the State’s request for a supervisory writ to vacate the preliminary 

injunction.

II

[¶5] RRWC argues this Court should decline to exercise its supervisory 

jurisdiction because this issue is not the sort of “extraordinary case” where the 

Court’s intervention is necessary. This Court’s authority to issue a supervisory 

writ is “purely discretionary.” State, ex rel. Harris v. Lee, 2010 ND 88, ¶ 6, 782 

N.W.2d 626 (quoting State v. Paulson, 2001 ND 82, ¶ 6, 625 N.W.2d 528). This 

Court will “determine whether to exercise supervisory jurisdiction on a caseby-case basis, considering the unique circumstances of each case.” Id. “Exercise 

of supervisory jurisdiction may be warranted when issues of vital concern 

regarding matters of important public interest are presented.” Id. It is entirely 

within this Court’s discretion to address the issues raised or to decline to 

address the issues.

[¶6] Section 12.1-31-12, N.D.C.C., was enacted in 2007. The enactment of the 

statute included recognition of existing United States Supreme Court 

precedents limiting the authority of states to regulate abortion. The effective 

date of the statute was tied to the issuance of a judgment by the United States 

Supreme Court restoring to the states the authority to regulate abortion.

[¶7] On June 24, 2022, the United States Supreme Court issued its decision 

in Dobbs v. Jackson Women’s Health Organization holding that the federal 

constitution does not protect a woman’s right to abortion. 142 S.Ct. 2228 

(2022). The Supreme Court explicitly overruled Roe v. Wade, 410 U.S. 113 

(1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 

U.S. 833 (1992), and expressly restored to the states the authority to regulate 

abortion. Dobbs, 142 S.Ct. at 2279. The Supreme Court reasoned “[i]t is time 

to heed the Constitution and return the issue of abortion to the people’s elected 

representatives.” Id. at 2243. And, “[t]he permissibility of abortion, and the 

limitations, upon it, are to be resolved like most important questions in our 

democracy: by citizens trying to persuade one another and then voting.” Id.
4

(quoting Casey, 505 U.S. at 979 (Scalia, J., concurring in judgment in part and 

dissenting in part)).

[¶8] This petition presents an unusual situation well within the range of our 

past decisions exercising original jurisdiction to “rectify errors and prevent 

injustice in extraordinary cases[.]” Harris, 2010 ND 88, ¶ 6. An order granting 

a preliminary injunction is by definition “extraordinary.” Black Gold OilField 

Servs., LLC v. City of Williston, 2016 ND 30, ¶ 12, 875 N.W.2d 515; Vorachek 

v. Citizens State Bank, 461 N.W.2d 580, 585 (N.D. 1990).

[¶9] On another occasion, we exercised our original jurisdiction to consider 

an interim district court order restraining and enjoining during the pendency 

of the action the governor and other state officials from acting pursuant to 

certain statutes relating to the Bank of North Dakota. State ex rel. Lemke v. 

Dist. Ct. of Stutsman Cnty., 186 N.W. 381 (1921). The Attorney General 

petitioned this Court for relief in the form of an appropriate writ. Id. at 382. 

The Court vacated the district court’s restraining order pending review of the 

trial court action in issuing the restraining order. Id. at 383. We said:

We do not find it necessary to refer to the matters set forth in the 

return filed by the district judge, for in our view of the case it is 

controlled by certain legal principles applicable to undisputed 

facts, or facts of which we must take judicial notice. In other words, 

we deem the questions arising in this case to be merely questions 

of law.

Id. We exercised our supervisory jurisdiction and issued “a writ directing the 

district court, and the judge thereof, to set aside the restraining order issued 

at the commencement of the action.” Id. at 388.

[¶10] In another case, this Court exercised its original jurisdiction to restrain 

a district court from issuing a preliminary injunction. State ex rel. Dorgan v. 

Fisk, 107 N.W. 191 (N.D. 1906). The board of drain commissioners of Grand 

Forks County had advertised for bids for construction of a drain. Id. at 191. 

Objecting landowners filed suit and procured an order to show cause why a 

preliminary injunction should not be issued enjoining the defendant from 

further proceedings regarding the drain. Id. The Board appeared at the 
5

scheduled hearing and objected, after which “the court stated that a 

preliminary injunction would be issued.” Id. An interested landowner 

petitioned this Court for a writ “commanding [the district judge] to desist from 

further proceeding in the injunctional action.” Id. Exercising our discretionary 

original jurisdiction to grant the writ and restrain the district court from 

issuing an injunction, we explained:

The remedy by appeal would exist if the injunction be 

granted. The mere fact that an appeal would lie is not enough. It 

must be speedy and adequate. The granting of the writ to inferior 

courts is seldom a matter of absolute right as the remedy by appeal 

generally exists, and whether the appeal is speedy or adequate is 

a matter within the discretion of the appellate court, depending 

upon the particular facts of each case. The court cannot accurately 

determine when a trial in the case at bar would come on nor when

the appeal would reach this court if an appeal were necessary. 

Inasmuch as the district court has exceeded its jurisdiction, a trial 

is unnecessary, and would be expensive and vexatious to each 

party; and that the result of a trial and appeal could not under the 

most favorable circumstances, be as speedy as a decision upon this 

original proceeding, we deem it a proper case for issuing a writ. 

The application for the writ is made to hasten a public 

improvement deemed to be of importance, at least to the petitioner 

and a large number of interested persons. There being a plain case 

of want of jurisdiction presented, and the appeal not being as 

speedy or adequate as this proceeding, we are satisfied that the 

petitioner is entitled to this summary and extraordinary remedy. 

We appreciate that this remedy should be cautiously granted. But, 

in view of the nature of the act that was enjoined, we have no doubt 

of the propriety and legality of assuming original jurisdiction.

Id. at 194.

[¶11] The issue presented by this petition is an issue of vital concern regarding 

a matter of important public interest. The extent to which a state legislature 

may regulate abortions has been the subject of multiple United States 

Supreme Court decisions, decisions of this Court, and the underlying action 

contends the legislature has exceeded its constitutional authority in regulating 
6

abortion. We choose to exercise our discretion to review whether the district 

court abused its discretion issuing a preliminary injunction.

III

[¶12] The State challenges each of the required elements for the granting of a 

preliminary injunction. We have noted the following regarding the elements 

necessary for a preliminary injunction:

A trial court’s discretion to grant or deny a preliminary 

injunction is based on the following factors: (1) substantial 

probability of succeeding on the merits; (2) irreparable injury; (3) 

harm to other interested parties; and (4) effect on the public 

interest. Nodak Mut. Ins. Co. v. Ward County Farm Bureau, 2004 

ND 60, ¶ 24, 676 N.W.2d 752; Vorachek v. Citizens State Bank, 461 

N.W.2d 580, 585 (N.D. 1990). The decision to grant or deny a 

preliminary injunction is within the discretion of a trial court, and 

its determination will not be disturbed on appeal absent an abuse 

of discretion. Nodak Mut., 2004 ND 60, ¶ 24, 676 N.W.2d 752. A 

trial court abuses its discretion if it acts in an arbitrary, 

unreasonable, or unconscionable manner, its decision is not the 

product of a rational mental process leading to a reasoned 

determination, or it misinterprets or misapplies the law. Id.

Eberts v. Billings Cnty. Bd. of Comm’rs, 2005 ND 85, ¶ 8, 695 N.W.2d 691. 

“Generally, ‘a preliminary injunction is an extraordinary and drastic remedy 

and should not be granted unless the movant, by a clear showing, carries the 

burden of persuasion.’” Black Gold OilField, 2016 ND 30, ¶ 12 (quoting 

Vorachek, at 585).

IV

[¶13] RRWC argues it has a substantial likelihood of succeeding on the merits 

in the underlying lawsuit because there is a fundamental right to receive 

abortion care under the North Dakota Constitution. RRWC’s complaint asserts 

the statute is unconstitutional and provides that RRWC is challenging the 

entirety of the statute, but also asserts challenges on behalf of various 

constituencies, including women seeking abortions and practicing physicians.
7

[¶14] An initial determination of whether there is a fundamental right to an 

abortion under the State Constitution is necessary because, if such a right 

exists within our Constitution, the statute is subject to strict scrutiny by this 

Court. Hoff v. Berg, 1999 ND 115, ¶ 13, 595 N.W.2d 285. In contrast, if we 

conclude there is no fundamental right to abortion, the statute is subject to a 

review by this Court as to whether the legislature had a rational basis for 

enactment. Id.

[¶15] RRWC argues sections 1 and 12 of article I of the North Dakota 

Constitution provide for a fundamental right to abortion. These sections read 

as follows:

Section 1. All individuals are by nature equally free and 

independent and have certain inalienable rights, among which are 

those of enjoying and defending life and liberty; acquiring, 

possessing and protecting property and reputation; pursuing and 

obtaining safety and happiness; and to keep and bear arms for the 

defense of their person, family, property, and the state, and for 

lawful hunting, recreational, and other lawful purposes, which 

shall not be infringed.

. . . .

Section 12. In criminal prosecutions in any court whatever, 

the party accused shall have the right to a speedy and public trial; 

to have the process of the court to compel the attendance of 

witnesses in his behalf; and to appear and defend in person and 

with counsel. No person shall be twice put in jeopardy for the same 

offense, nor be compelled in any criminal case to be a witness 

against himself, nor be deprived of life, liberty or property without 

due process of law.

N.D. Const. art. I, §§ 1 and 12.

[¶16] RRWC argues the North Dakota Constitution should be interpreted 

expansively because the North Dakota Constitution “is a living, breathing, 

vital instrument, adaptable to the needs of the day, and was so intended by the 

people when adopted.” State v. Norton, 255 N.W. 787, 792 (N.D. 1934). The 

State argues there is no constitutional right to an abortion under either section 
8

of article I of the North Dakota Constitution, citing to MKB Management Corp. 

v. Burdick, 2014 ND 197, 855 N.W.2d 31 (VandeWalle, Chief Justice, 

concurring). The State contends the inherent rights recognized under sections 

1 and 12, such as the fundamental right of parents to parent their child are 

distinguishable from abortion because abortion, unlike the right to parent one’s 

own child, does not have longstanding roots in American culture.

[¶17] This Court uses the following framework when interpreting 

constitutional provisions:

In interpreting constitutional provisions, we apply general 

principles of statutory construction. Thompson v. Jaeger, 2010 ND 

174, ¶ 7, 788 N.W.2d 586. Our overriding objective is to give effect 

to the intent and purpose of the people adopting the constitutional 

provision. City of Bismarck v. Fettig, 1999 ND 193, ¶ 8, 601 N.W.2d 

247. The intent and purpose of constitutional provisions are to be 

determined, if possible, from the language itself. Thompson, at ¶ 

7. In construing constitutional provisions, we ascribe to the words 

the meaning the framers understood the provisions to have when 

adopted. Kadrmas v. Dickinson Pub. Schs., 402 N.W.2d 897, 899 

(N.D. 1987). We may consider contemporary legal practices and 

laws in effect when the people adopted the constitutional 

provisions. See State v. Orr, 375 N.W.2d 171, 177-78 (N.D. 1985) 

(interpreting right to counsel provision of state constitution in view 

of statutes in effect when constitution adopted); City of Bismarck 

v. Altevogt, 353 N.W.2d 760, 764-65 (N.D. 1984) (interpreting right 

to jury trial under state constitution in view of territorial statutes 

defining right to jury trial).

MKB Mgmt. Corp., 2014 ND 197, ¶ 25. “[T]he North Dakota Constitution must 

be read in the light of history.” State v. Allesi, 216 N.W.2d 805, 817 (N.D. 1974).

[¶18] Whether there is a fundamental right to abortion within the North 

Dakota Constitution was before this Court previously in MKB Management 

Corp. In MKB Management Corp., this Court could not reach a sufficient 

majority to hold the underlying statute unconstitutional, the result RRWC is 

ultimately seeking in this case. MKB Mgmt. Corp., 2014 ND 197, ¶ 1. See N.D. 

Const. art. VI, § 4 (“[This Court] shall not declare a legislative enactment 
9

unconstitutional unless at least four of the members of the court so decide.”). 

Additionally, this Court was unable to determine whether there is a 

fundamental right to an abortion under the North Dakota Constitution. MKB 

Mgmt. Corp., at ¶ 1 (VandeWalle, C.J., concurred, at ¶ 38 finding “our state 

constitutional provisions were not intended to encompass a fundamental right 

to abortion[.]”); (Kapsner, J., and Maring, J., writing separately, at ¶ 97 

concluding “a fundamental right to choose abortion before viability exists 

under a woman’s liberty interest in article [I], section 1 of the North Dakota 

constitution and that interest is protected under article [I], section 12.”); 

(Crothers, J., concurred, at ¶ 157 finding this case should not be decided under 

the North Dakota Constitution); (Sandstrom, J., concurred, at ¶ 170 stating 

“[t]he Chief Justice persuasively argues there is no separate state 

constitutional right to an abortion.”).

[¶19] Several states have found their state constitutions provide for a 

fundamental right to abortion. The Minnesota Supreme Court recognized a 

fundamental right to abortion under a combination of sections and rights in 

the Minnesota Constitution. Women of State of Minn. by Doe v. Gomez, 542 

N.W.2d 17, 19 (Minn. 1995). The California Supreme Court found a 

fundamental right to abortion under California’s constitutional privacy clause. 

Am. Acad. of Pediatrics v. Lungren, 16 Cal.4th 307, 66 Cal.Rptr.2d 210, 940 

P.2d 797, 819 (1997). The Alaska Supreme Court found a fundamental right to 

abortion within the right to privacy in the Alaska Constitution. Valley Hosp. 

Ass’n, Inc. v. Mat-Su Coal. for Choice, 948 P.2d 963, 969 (Alaska 1997). The 

Montana Supreme Court found a fundamental right to an abortion under 

Montana’s constitutional provision which explicitly guarantees its citizens the 

right of privacy. Armstrong v. State, 296 Mont. 361, 989 P.2d 364, 387 (1999). 

The New Jersey Supreme Court found a fundamental right to abortion within 

the “natural and unalienable rights” clause of the New Jersey Constitution. 

Planned Parenthood of Cent. N.J. v. Farmer, 165 N.J. 609, 762 A.2d 620, 629 

(2000). The Kansas Supreme Court has concluded its state constitution 

provides abortion rights. Hodes & Nauser, MDs, P.A. v. Schmidt, 309 Kan. 610, 

440 P.3d 461 (2019). Lastly, the Florida Supreme Court found a fundamental 
10

right to abortion within Florida’s constitutional right to privacy. Gainesville 

Woman Care, LLC v. State, 210 So.3d 1243, 1252 (Fla. 2017).

[¶20] For the reasons set out below, we conclude RRWC has a substantial 

likelihood in establishing there is a fundamental right for a woman to obtain 

an abortion in instances where it is necessary to preserve her life or health. We 

need go no further here to determine whether there are fundamental rights

broader in scope.

[¶21] “Our overriding objective is to give effect to the intent and purpose of the 

people adopting the constitutional statement.” State v. Hagerty, 1998 ND 122, 

¶ 13, 580 N.W.2d 139 (quoting Comm’n on Med. Competency v. Racek, 527 

N.W.2d 262, 266 (N.D. 1995)). To accomplish this we must construe the 

constitution in light of the contemporaneous history existing at and prior to 

the adoption of the constitutional provision. City of West Fargo v. McAllister, 

2022 ND 94, ¶ 6, 974 N.W.2d 393.

[¶22] North Dakota Constitution article I, section 1 was enacted in 1889 when 

North Dakota was admitted as a state to the Union. Section 1 provides, in part, 

“[a]ll individuals are by nature equally free and independent and have certain 

inalienable rights, among which are those of enjoying and defending life and 

liberty; acquiring, possessing and protecting property and reputation; 

pursuing and obtaining safety and happiness[.]” N.D. Const. art. I, § 1. The 

North Dakota Constitution explicitly provides all citizens of North Dakota the 

right of enjoying and defending life and pursuing and obtaining safety. These 

rights implicitly include the right to obtain an abortion to preserve the 

woman’s life or health.

[¶23] North Dakota’s history and traditions support this conclusion. North 

Dakota has a long history of permitting women to obtain abortions to preserve 

their life or health. Prior to statehood, North Dakota, then part of the Dakota 

Territory, criminalized abortions but explicitly provided an abortion was not a 

criminal act if the treatment was done to preserve the life of the woman:

Every person who administers to any pregnant woman, or who 

prescribes for any such woman, or advises or procures any such 
11

woman to take any medicine, drug or substance, or uses or employs 

any instrument, or other means whatever, with intent thereby to 

procure the miscarriage of such woman, unless the same is 

necessary to preserve her life, is punishable by imprisonment in 

the territorial prison not exceeding three years, or in a county jail 

not exceeding one year.

Compiled Laws of the Territory of Dakota, Penal Code, § 6538 (1887). The laws 

of the Dakota Territory read identically and provided the ability to receive a 

life-preserving abortion in 1877 and 1883.

[¶24] After statehood, North Dakota enacted a law which criminalized 

abortions but again explicitly provided an abortion would not be considered a 

criminal act if the treatment was done to preserve the life of the woman, which 

read:

Every person who administers to any pregnant woman, or who 

prescribes for any such woman, or advises or procures any such 

woman to take any medicine, drug or substance, or uses or employs 

any instrument or other means whatever, with intent thereby to 

procure the miscarriage of such woman, unless the same is 

necessary to preserve her life, is punishable by imprisonment in 

the penitentiary not less than one and not exceeding three years, 

or in a county jail not exceeding one year.

N.D. Rev. Code § 7177 (1895). North Dakota’s legislature repeatedly reaffirmed 

the criminal prohibitions in substantially the same form and always with the 

same exception for abortions “necessary to preserve her life.” N.D. Rev. Code § 

7177 (1899); N.D. Rev. Code § 8912 (1905); N.D. Rev. Code § 9604 (1913); N.D. 

Rev. Code § 12-2501 (1943); N.D.C.C. § 12-25-01 (1959); N.D.C.C. § 12.1-19-01 

(1973). North Dakota did not criminalize life-preserving abortions until 

N.D.C.C. § 12.1-31-12 was enacted in 2007 and became eligible for enforcement 

in 2022.

[¶25] Medical journals published shortly after statehood indicate it was 

common knowledge that an abortion could be performed to preserve the life or 

health of the woman.
12

There are not infrequently cases in which an abortion is 

imperative: the mentally unfit who might become deranged; the 

woman with a narrow brim or outlet because of which her life 

might be in danger and a Cesar[e]an section is the only relief; the 

woman who may bleed to death; the eclamptic; and those suffering 

from dangerous diseases. This class, fortunately, is small in 

number; and abortion is performed only after a deliberate and 

careful consultation in which the dangers of the abortion are 

weighed from every side.

Criminal Abortions, 34 JOURNAL-LANCET 81, 82 (1914). Additionally, in the 

journal a doctor describes an abortion performed: “Mrs. T. first came under the 

writer’s care for acute septic abortion. The uterus were emptied, and after a 

rather continued run of temperature the patient made a symptomatic 

recovery.” A.C. Stokes, M.D., Diseases of the Urinary Tract Produced by 

Diseases of the Genital Tract in the Female, 34 JOURNAL-LANCET 593, 594 

(1914). North Dakota recognized and approved abortions performed to 

preserve the life or health of the woman.

[¶26] The State asserts abortion cannot be included as a fundamental right, 

because the inherent rights reserved to the people under sections 1 and 12, 

such as the fundamental right of parents to parent their child, are 

distinguishable from abortion because abortion, unlike the right to parent one’s 

own child, does not have longstanding roots in American culture. This 

assertion is incorrect, as noted above, North Dakota has a longstanding history 

of allowing pregnant women to receive an abortion to preserve her life or 

health. The legislature enacted and reaffirmed laws which always provided an 

exception to preserve the life of the woman up and until 2007 when N.D.C.C. 

§ 12.1-31-12 was enacted as a trigger law. See N.D. Rev. Code § 7177 (1899); 

N.D. Rev. Code § 8912 (1905); N.D. Rev. Code § 9604 (1913); N.D. Rev. Code § 

12-2501 (1943); N.D.C.C. § 12-25-01 (1959); N.D.C.C. § 12.1-19-01 (1973); 

N.D.C.C. § 14-02.1-04 (1975). Like the right to parent one’s own child, the right 

to receive a health or life-preserving abortion is deeply rooted in North 

Dakota’s history and culture.
13

[¶27] Fundamental rights are those which are deeply rooted in history and 

tradition and are implicit in the concept of ordered liberty. State v. Baxter, 2015 

ND 107, ¶ 15, 863 N.W.2d 208. North Dakota’s history and traditions, as well 

as the plain language of its Constitution, establish that the right of a woman 

to receive an abortion to preserve her life or health was implicit in North 

Dakota’s concept of ordered liberty before, during, and at the time of statehood.

After review of North Dakota’s history and traditions, and the plain language 

of article I, section 1 of the North Dakota Constitution, it is clear the citizens 

of North Dakota have a right to enjoy and defend life and a right to pursue and 

obtain safety, which necessarily includes a pregnant woman has a fundamental 

right to obtain an abortion to preserve her life or her health.

V

[¶28] Because we hold the North Dakota Constitution provides a fundamental

right to receive an abortion to preserve a pregnant woman’s life or health, the 

constitutionality of N.D.C.C. § 12.1-31-12 must be analyzed under the strict 

scrutiny standard. A statute which restricts a fundamental right is subject to 

strict scrutiny standard of review which will only be justified if it furthers a 

compelling government interest and is narrowly tailored to serve that interest. 

Hoff, 1999 ND 115, ¶ 14.

[¶29] The State argues it has a compelling interest in protecting women’s 

health and protecting unborn human life. RRWC does not challenge this 

assertion. We have previously held several interests compelling, including the 

State’s interest in establishing minimum standards of education for children, 

interest in promoting grandparent visitation while protecting parents’ right to 

parent their child, interest in highway safety, and an interest in regulating the 

practice of law within its boundaries. Bismarck Pub. Sch. Dist. No. 1 v. State 

By and Through N.D. Legislative Assembly, 511 N.W.2d 247, 259 (N.D. 1994); 

Kulbacki v. Michael, 2014 ND 83, ¶ 9, 845 N.W.2d 625; Kobilanksy v. Liffrig, 

358 N.W.2d 781, 791 (N.D. 1984); State v. Niska, 380 N.W.2d 646, 650 (N.D. 

1986). The State has a compelling interest in protecting women’s health and 

protecting unborn human life, as these interests are at least of the same 

importance as compelling interests previously identified by this Court.
14

[¶30] Nevertheless, the State must still show N.D.C.C. § 12.1-31-12 is 

necessary to achieve the compelling state interests. While we note the 

legislature can regulate abortion, it must do so in a manner that is narrowly 

tailored to achieve the compelling interest. Hoff, 1999 ND 115, ¶ 13. On its 

face, N.D.C.C. § 12.1-31-12 unnecessarily restricts a woman’s access to an 

abortion to preserve her life or health. Section 12.1-31-12, N.D.C.C., 

criminalizes abortions performed even if the abortion is to preserve the life or 

health of the woman. The statute requires a physician who performs a lifepreserving abortion to face prosecution of a class C felony, and if prosecuted 

prove by a preponderance of the evidence the abortion was necessary to save 

the life of the woman. This is not narrowly tailored to achieve the State’s 

interests in women’s health and protecting unborn human life.

[¶31] Moreover, N.D.C.C. § 12.1-31-12 provides an affirmative defense only if

in the professional judgment of the physician the abortion was necessary to 

prevent the death of the female. A pregnant woman is unable to obtain an 

abortion in order to preserve her health, regardless of the potential health 

consequences. Preserving the life or health of the woman necessarily includes

providing an abortion when necessary to prevent severe, life altering damage. 

The United States District of Idaho explained the grave risks to health a 

pregnant woman faces:

Pregnant women in Idaho routinely arrive at emergency rooms 

experiencing severe complications. The patient might be spiking a 

fever, experiencing uterine cramping and chills, contractions, 

shortness of breath, or significant vaginal bleeding. The ER 

physician may diagnose her with, among other possibilities, 

traumatic placental abruption, preeclampsia, or a preterm 

premature rupture of the membranes. In those situations, the 

physician may be called upon to make complex, difficult decisions 

in a fast-moving, chaotic environment. She may conclude that the 

only way to prevent serious harm to the patient or save her life is 

to terminate the pregnancy—a devastating result for the doctor 

and the patient.

. . . .
15

Yet if the physician does not perform the abortion, the pregnant 

patient faces grave risks to her health—such as severe sepsis 

requiring limb amputation, uncontrollable uterine hemorrhage 

requiring hysterectomy, kidney failure requiring lifelong dialysis, 

hypoxic brain injury, or even death. And this woman, if she lives, 

potentially may have to live the remainder of her life with 

significant disabilities and chronic medical conditions as a result 

of her pregnancy complication. All because Idaho law prohibited 

the physician from performing the abortion.

Granted, the Idaho statute offers the physician the cold comfort of 

a narrow affirmative defense to avoid conviction. But only if she 

convinces a jury that, in her good faith medical judgment, 

performing the abortion was “necessary to prevent the death of the 

pregnant woman” can she possibly avoid conviction. Even then, 

there is no certainty a jury will acquit. And the physician cannot 

enjoy the benefit of this affirmative defense if she performed the 

abortion merely to prevent serious harm to the patient, rather 

than to save her life.

United States v. Idaho, 2022 WL 3692618, 1 (D. Idaho 2022). (Federal district 

court analyzing the Idaho statute under the Emergency Medical Treatment & 

Labor Act preemption.) A law that on its face criminalizes a life-preserving 

abortion, infringes unnecessarily on a woman’s fundamental right to seek an 

abortion to preserve her life or health, at least in part, cannot withstand strict 

scrutiny.

[¶32] The State asserts N.D.C.C. § 12.1-31-12 is narrowly tailored because it 

provides a “narrow” definition of abortion. Section 12.1-31-12 defines abortion 

as follows:

“Abortion” means the use or prescription of any substance, device, 

instrument, medicine, or drug to intentionally terminate the 

pregnancy of an individual known to be pregnant. The term does 

not include an act made with the intent to increase the probability 

of a live birth; preserve the life or health of a child after live birth; 

or remove a dead, unborn child who died as a result of a 

spontaneous miscarriage, an accidental trauma, or a criminal 

assault upon the pregnant female or her unborn child.
16

N.D.C.C. § 12.1-31-12(1)(a). This definition is not narrowly tailored to women’s 

health. Notably, the definition does not include abortions for ectopic 

pregnancies, which is a pregnancy where the fertilized egg “does not implant 

appropriately within the uterus” and is potentially lethal to the mother. 2 Am. 

Law Med. Malp. § 13:6 (2022). Therefore, under the statutory construction of 

N.D.C.C. § 12.1-31-12, an abortion to treat an ectopic pregnancy would be a 

criminal act. As noted above, criminalizing life-preserving abortions is not 

necessary to promote the State’s interests in women’s health and protecting 

unborn human life.

[¶33] In sum, the history and traditions of North Dakota support the 

conclusion that there is a fundamental right to receive an abortion to preserve 

the life or the health of the mother. Thus, in order to withstand constitutional 

scrutiny, N.D.C.C. § 12.1-31-12 must be necessary to promote a compelling 

interest. As described above, the statute is not narrowly tailored to promote 

women’s health and protect unborn human life. Therefore, N.D.C.C. § 12.1-31-

12 is unconstitutional, and RRWC has a substantial likelihood of succeeding 

on the merits at least with respect to life or health preserving abortions.

VI

[¶34] The second factor relevant to granting a preliminary injunction is the 

irreparable injury a party will suffer in the absence of a preliminary injunction.

An injury is irreparable when it cannot be adequately 

compensated in damages, and it is not necessary that the 

pecuniary damage be shown to be great. * * * Acts which result in 

a serious change of, or are destructive to, the property affected 

either physically or in the character in which it has been held or 

enjoyed, * * * do an irreparable injury * * *. 43 C.J.S., Injunctions, 

§ 23, pp. 446, 447, 448.

Vorachek, 461 N.W.2d at 585 (quotations omitted) (quoting Viestenz v. Arthur 

Twp., 78 N.D. 1029, 54 N.W.2d 572, 578 (1952)).

[¶35] RRWC argued if N.D.C.C. § 12.1-31-12 is allowed to be enforced during 

the pendency of this litigation, irreparable damage will likely result from the 
17

potentially life-saving or injury avoiding abortions that will not be performed 

at other healthcare facilities on an emergency basis. The irreparable injury to 

the state is the irreversible loss of unborn human life. The death of unborn 

children and the potential death or injury of a pregnant woman are both tragic. 

While we may have found this factor neutral, under an abuse of discretion 

standard we “will not reverse a district court’s decision merely because it is not 

the one [we] would have made had it been [this Court] deciding the motion.” 

Anderson v. Baker, 2015 ND 269, ¶ 7, 871 N.W.2d 830. The district court did 

not abuse its discretion in determining RRWC would suffer a greater 

irreparable injury than the State.

VII

[¶36] The third factor relevant to granting a preliminary injunction is the 

harm to other interested parties. RRWC argued if N.D.C.C. § 12.1-31-12 is not 

enjoined, the women of North Dakota will face grave harm. The State argued 

the citizens of North Dakota will face grave harm if N.D.C.C. § 12.1-31-12 is 

enjoined, because the citizens of North Dakota have an interest in legislation 

being enforced. The district court found RRWC’s arguments more persuasive, 

finding N.D.C.C. § 12.1-31-12 has been lying dormant for almost 15 years and 

the State failed to show how an additional delay would greatly harm any other 

interested parties. The district court did not abuse its discretion determining 

this factor weighed in RRWC’s favor because the district court did not act in an 

arbitrary, unreasonable, or unconscionable manner in determining the lack of 

an injunction would cause harm to other interested parties.

VIII

[¶37] The final factor relevant to granting a preliminary injunction is the effect 

on public interest. RRWC argued it is always in the public interest to protect 

constitutional rights and abortion has been legal in North Dakota for 50 years. 

The State argued that prior to Roe and Casey, North Dakota had a long 

standing history of prohibiting abortions. The district court noted both 

arguments were valid; however, the purpose of preliminary injunctions is to 

maintain the status quo during the pendency of litigation and at this time the 
18

status quo in North Dakota is not to restrict or limit abortions in the manner 

provided for in N.D.C.C. § 12.1-31-12.

[¶38] “[T]he purpose of a temporary or preliminary injunction ‘is to maintain 

the cause in status quo until a trial on the merits.’” State v. Holecek, 545 

N.W.2d 800, 804 (N.D. 1996) (quoting Gunsch v. Gunsch, 69 N.W.2d 739, 745 

(N.D. 1954)). Roe v. Wade, which found a constitutional right to an abortion 

within the United States Constitution was decided in 1973. 410 U.S. 113 

(1973). From 1973 until June 2022 the right to obtain an abortion, with some 

restrictions, has been present nationwide and in North Dakota. After the 

Dobbs decision overturned Roe, N.D.C.C. § 12.1-31-12 was not triggered before 

the district court ordered the injunction. Therefore, the status quo in North 

Dakota for 49 years has been to allow for abortion care. The district court 

properly determined the status quo at this time is to generally allow abortion 

care and thus to maintain that status quo until a trial on the merits is held, 

N.D.C.C. § 12.1-31-12 should be temporarily enjoined from enforcement. The 

district court did not act in an arbitrary, unreasonable, or unconscionable 

manner in determining the effect of the public interest weighs in favor of 

granting a preliminary injunction.

IX

[¶39] The district court did not abuse its discretion in determining RRWC has 

a substantial likelihood of succeeding on the merits, RRWC will suffer 

irreparable injury, failure to enjoin N.D.C.C. § 12.1-31-12 will cause harm to 

other interested parties, and it is in the public interest to enjoin enforcement 

of N.D.C.C. § 12.1-31-12. The district court did not abuse its discretion in 

granting the preliminary injunction.

X

[¶40] The North Dakota Constitution guarantees North Dakota citizens the 

right to enjoy and defend life and the right to pursue and obtain safety, which 

necessarily includes a pregnant woman has a fundamental right to obtain an 

abortion to preserve her life or her health. Thus, strict scrutiny analysis

applies, and RRWC has a substantial likelihood of demonstrating N.D.C.C. §
19

12.1-31-12 is not narrowly tailored to achieve a compelling government 

interest, at least in the limited instances of life-saving and health-preserving 

circumstances. The district court did not abuse its discretion in granting the 

preliminary injunction. We deny the requested relief and leave the preliminary 

injunction in place.

[¶41] Jon J. Jensen, C.J.

Daniel J. Crothers

Lisa Fair McEvers

Daniel D. Narum, D.J.

Tufte, Justice, concurring.

[¶42] I agree with the majority opinion, with the understanding that to reach 

the result here, “life or health” need not be understood more broadly than its 

application to the right of self-defense. Section 12.1-31-12, N.D.C.C., provides 

only an affirmative defense and not an exception for abortion intended to save 

a pregnant woman’s life. For that reason, there is a substantial probability it 

is unconstitutional in violation of the right of self-defense protected by N.D. 

Const. art. I, § 1. At this time we consider only the preliminary injunction, and 

we need not decide the constitutionally necessary scope of any health 

exception.

[¶43] The North Dakota Constitution guarantees the “inalienable right[ ] ... of 

enjoying and defending life and liberty.” N.D. Const. art. I, § 1. Commonly, an 

individual exercises this right of self-defense by responding to a threat of 

imminent serious bodily injury or death with physical force. City of Jamestown 

v. Kastet, 2022 ND 40, ¶ 17, 970 N.W.2d 187; State v. Olander, 1998 ND 50, 

¶ 20, 575 N.W.2d 658. Where a pregnancy raises a similar threat of serious 

bodily injury or death, the pregnant woman has a fundamental right to 

preserve her life and health with the aid of a physician. Our recognition of this 

fundamental right to preserve one’s life does not depend on resolving the 

disputed point of pregnancy at which there are two lives that must be 

considered. The State has a compelling interest in protecting unborn human 

life, which RRWC does not dispute. Majority, at ¶ 29. We have long understood 
20

that a woman has an inalienable right to employ deadly force against another 

person when necessary to protect herself against death or serious bodily injury. 

State v. Leidholm, 334 N.W.2d 811, 820 (N.D. 1983); United States v. Leighton, 

3 Dakota 29, 13 N.W. 347, 348 (1882). Likewise, the State’s compelling interest 

on behalf of an unborn child must yield to the pregnant woman’s right to abort 

a pregnancy when necessary to preserve her life or health.

[¶44] If there is merely evidence sufficient to raise a reasonable doubt about a 

self-defense claim, a defendant is entitled to a jury instruction on self-defense 

and the State must prove the absence of self-defense as an element of the 

offense beyond a reasonable doubt. Kastet, 2022 ND 40, ¶ 17; Olander, 1998 

ND 50, ¶ 20; State v. Hazlett, 113 N.W. 374, 378 (N.D. 1907). Where an abortion 

is performed in situations that fall within the constitutional right of selfdefense, section 12.1-31-12, N.D.C.C., unconstitutionally places the 

evidentiary burden on the defendant to raise not merely a reasonable doubt, 

but to prove an affirmative defense by a preponderance of the evidence. To that 

extent, RRWC has demonstrated a substantial probability of success in 

demonstrating N.D.C.C. § 12.1-31-12 is unconstitutional in violation of N.D. 

Const. art. I, § 1.

[¶45] We do not decide here what scope of health risks may give rise to abortion 

as medical self-defense. In the district court, the parties will have opportunity 

to present historical evidence illuminating the meaning of Article I, § 1, and to 

further develop their legal arguments. Before Roe v. Wade, 410 U.S. 113 (1973),

restrictive abortion laws in North Dakota and nationwide uniformly 

recognized exceptions for abortion intended to save the woman’s life. See

Eugene Volokh, Medical Self-Defense, Prohibited Experimental Therapies, and 

Payment for Organs, 120 Harv. L. Rev. 1813, 1825 (2007) (“[T]he abortion-asself-defense right is largely uncontroversial, at least when threats to the 

mother’s life, and not just to her psychological health, are involved: it was 

accepted even in Chief Justice Rehnquist’s Roe dissent, [and] it was recognized 

by all the restrictive abortion laws in effect when Roe was decided.”).

[¶46] There may or may not be sufficient historical evidence to support a 

broader self-defense or other fundamental right implicated by the state’s 
21

abortion regulations. That question is not resolved here. Today our decision is 

one of likely success on the merits necessary to support a preliminary 

injunction. Before final resolution of the claims, the parties may present 

historical evidence on the state constitution’s original meaning, both when 

adopted in 1889 and when amended in 1984. The court also may receive further 

legal argument about the meaning of Article I, § 1, and any rights guaranteed 

by “necessary implication.” Black’s Law Dictionary 903 (11th ed. 2019); see also

Henry Campbell Black, A Dictionary of Law 806 (1st ed. 1891) (“so strong a 

probability of intention that an intention contrary . . . cannot be supposed”). I 

agree with Justice McEvers that Cooley’s treatise may well provide insight into 

what the people who drafted and adopted our declaration of fundamental 

rights meant by the words chosen and how they expected those words to be 

interpreted by the courts. Thomas M. Cooley, A Treatise on the Constitutional 

Limitations Which Rest Upon the Legislative Power of the States of the 

American Union 45-47, ch. IV & VII (5th ed. 1883). If the district court enters

a permanent injunction, it may have to address questions of severability and 

consider any amendments to the statute enacted while this matter is pending. 

Also unresolved here is how the district court and this Court ultimately assess 

the narrow tailoring requirement where there are two compelling interests and 

it appears that the more narrowly tailored a statute is to protecting the life 

and health of pregnant women, the less narrowly tailored it is to the State’s 

interest in protecting unborn life, and vice versa.

[¶47] Jerod E. Tufte

McEvers, Justice, concurring specially.

[¶48] I agree with the majority to exercise our discretion to review and deny 

the requested relief as set forth in the majority opinion, upholding the 

injunction on narrow grounds. I write separately to explain how and why the 

rights protected under the North Dakota Constitution may be broader than 

those protected under the United States Constitution.

[¶49] The historical perspective leading to adopting our state constitution is 

helpful to understand the difference between the state and federal 
22

constitutions. The prominent late nineteenth century American legal scholar 

Thomas Cooley cautioned against mistaking a state constitution’s recognition 

of a right as being the source of its creation:

In considering State constitutions we must not commit the 

mistake of supposing that, because individual rights are guarded 

and protected by them, they must also be considered as owing their 

origin to them. These instruments measure the powers of the 

rulers, but they do not measure the rights of the governed. 

Thomas M. Cooley, A Treatise on the Constitutional Limitations which Rest 

upon the Legislative Power of the States of the American Union, *36 (2d ed. 

1871). Professor Cooley explained a constitution “grants no rights to the 

people,” but instead is “[d]esigned for their protection in the enjoyment of the 

rights and powers which they possessed before the constitution was made.” Id.

[¶50] Professor Cooley also described the difference between the Constitution 

of the United States and a state constitution:

It is to be borne in mind, however, that there is a broad 

difference between the Constitution of the United States and the 

constitutions of States as regards the powers which may be 

exercised under them. The government of the United States is one 

of enumerated powers; the governments of the States are possessed 

of all general powers of legislation. When a law of Congress is 

assailed as void, we look in the national Constitution to see if the 

grant of specified powers is broad enough to embrace it; but when 

a State law is attacked on the same ground, it is presumably valid 

in any case, and this presumption is a conclusive one, unless in the 

Constitution of the United States or of the State we are able to 

discover that it is prohibited. We look in the Constitution of the 

United States for grants of legislative power, but in the 

constitution of the State to ascertain if any limitations have been 

imposed upon the complete power with which the legislative 

department of the State was vested in its creation. . . . That 

instrument has been aptly termed a legislative act by the people 

themselves in their sovereign capacity, and is therefore the 

paramount law. Its object is not to grant legislative power, but to 

confine and restrain it. Without constitutional limitations, the 
23

power to make law would be absolute. These limitations are 

created and imposed by express words, or arise by necessary 

implication. . . . The executive can do no legislative act, nor the 

legislature any executive act, and neither can exercise judicial 

authority.

It does not follow, however, that in every case the courts, 

before they set aside a law as invalid, must be able to find in the 

constitution some specific inhibition which has been disregarded, 

or some express command which has been disobeyed.

Cooley, supra, at *173-74 (italics in original; underlining added).

[¶51] Professor Cooley described certain rights as “fundamental,” specifically 

noting “that all men are by nature free and independent, and have certain 

inalienable rights, among which are those of enjoying and defending life and 

liberty, acquiring, possessing, and protecting property, and pursuing and 

obtaining safety and happiness.” Cooley, supra, at *35. Likely, it is no 

coincidence that N.D. Const. art. I, § 1 identifies all of the natural and 

inalienable rights identified by Professor Cooley with the same language he 

used (except one word I discuss below). Professor Cooley addressed our 

constitutional drafters on July 17, 1889, in Bismarck. See Official Report of the 

Proceedings and Debates of the First Constitutional Convention of North 

Dakota, 65-67 (1889). He told them they were setting out “guiding landmarks” 

that will exist “probably for all time.” Id. at 65. He cautioned them “that times 

change,” and he advised them not to “legislate too much.” Id. at 66-67. He said 

“[t]ake care to put proper restrictions” on the legislature, “but at the same time 

leave what properly belongs to the field of legislation” to future legislatures. 

Id. at 67.

[¶52] Before he spoke to the constitutional convention, Professor Cooley wrote 

in Constitutional Limitations it “is the peculiar province of the judicial 

department,” as opposed to the legislature, “to adjudicate upon, and protect, 

the rights and interests of individual citizens, and to that end to construe and 

apply the laws.” Cooley, supra, at *90. Shortly before the constitutional 

convention, the United States Supreme Court also discussed the duty of the 
24

judiciary in Boyd v. United States, 116 U.S. 616, 635 (1886), explaining courts 

must be “watchful for the constitutional rights of the citizen, and against any 

stealthy encroachment thereon.” Courts, it explained, must liberally construe 

provisions protecting fundamental rights:

[C]onstitutional provisions for the security of person and property 

should be liberally construed. A close and literal construction 

deprives them of half their efficacy, and leads to gradual 

depreciation of the right, as if it consisted more in sound than in 

substance.

Id. Based on this legal precedent, we can assume the drafters understood 

courts would construe broadly descriptions protecting life, liberty, and security 

of a person liberally. They nonetheless chose at the outset to enshrine broad 

guarantees of freedom in N.D. Const. art. I, § 1.

[¶53] Although the drafters of our constitution adopted the words Professor 

Cooley used, one has since changed. On November 6, 1984, the people of this 

State approved an initiated measure that changed the word “men” in N.D. 

Const. art. I, § 1 to the word “individuals.” See MKB Mgmt. Corp. v. Burdick, 

2014 ND 197, ¶¶ 88-89, 855 N.W.2d 31 (opinion of Kapsner, J.) (discussing the 

amendment). The people clarified in writing what the drafters omitted—that 

women are born with the same natural and inalienable rights as men. N.D. 

Const. art. I, § 1.

[¶54] We view the question before us through this lens. Our reading of the 

Constitution requires a recognition that the drafters did not set out to delineate 

in Article I, § 1 the specific rights it protects and to exclude others. Rather, the 

limitations placed on the legislature in Article I, § 1 arise by necessary 

implication. By its nature, the Constitution was meant to “define the limits” of 

the State’s exercise of power “so as to protect individual rights, and shield them 

against the assumption of arbitrary power.” Cooley, supra, at *3. The rights 

mentioned in Article I, § 1 are “among” those “certain inalienable rights” that 

“all individuals” possess “by nature.” Id. For example, the Constitution does 

not specifically identify a number of fundamental rights, and yet this Court 

has recognized the same. See Hoff v. Berg, 1999 ND 115, ¶¶ 8-18, 595 N.W.2d 
25

285 (stating parents have a fundamental right to parent their children); State 

ex rel. Schuetzle v. Vogel, 537 N.W.2d 358, 360-64 (N.D. 1995) (recognizing 

liberty interest to refuse unwanted medical treatment); Johnson v. Elkin, 263 

N.W.2d 123, 129-30 (N.D. 1978) (identifying liberty right to engage in ordinary 

occupation without state regulation).

[¶55] While I agree, and have signed with the majority, I write separately to 

recognize analysis of the state constitution will not always parallel analysis of 

the federal constitution. See State v. Kordonowy, 2015 ND 197, ¶ 14, 867 

N.W.2d 690 (“A state may grant greater protections than the United States 

Constitution through its own constitution”); see also Riemers v. Eslinger, 2010 

ND 76, ¶ 18, 781 N.W.2d 632 (same); State v. Nordquist, 309 N.W.2d 109, 113 

(N.D. 1981) (same); State v. Matthews, 216 N.W.2d 90, 99 (N.D. 1974) (same). 

In addition, while we have only narrowly considered the fundamental right to 

an abortion “at least in the limited instances of life-saving and health 

preserving circumstances,” Majority, at ¶ 40, the district court is free to 

consider whether additional fundamental rights are implicated by the statute 

under N.D. Const. art. I, § 1, or any other constitutional provision. For 

example, while the parties have not addressed N.D. Const. art. I, § 25, which 

provides comprehensive constitutional rights for victims of crimes, the rights 

found therein may be implicated nonetheless by N.D.C.C. § 12.1-31-12.

[¶56] Daniel J. Crothers

Lisa Fair McEvers

Daniel D. Narum, D.J.

[¶57] Justice Gerald W. VandeWalle was not a member of the Court when this 

opinion was considered and did not participate in the decision. The Honorable 

Daniel D. Narum, D.J., sitting in place of Bahr, J., disqualified.