A major pro-life victory in North Dakota

On a late Friday afternoon this past November, the North Dakota Supreme Court quietly released a final ruling reversing a Bismarck court’s judgment that declared North Dakota’s near-total ban on abortion unconstitutional. While local news outlets reported on the decision, the coverage was so muted that many North Dakotans may not have noticed it. Despite the minimal news attention, there is no doubt the decision marks a major pro-life victory in North Dakota.
 
By way of background, North Dakota’s abortion ban was passed into law in the 2023 legislative session, shortly after the U.S. Supreme Court overturned Roe v. Wade and returned the issue to the states. The law was almost immediately challenged in court by four physicians and the Red River Women’s Clinic, the state’s sole abortion clinic at that time before relocating to Minnesota. 
 
North Dakota’s abortion ban makes it a felony for a physician to perform an abortion in our state except when, in his or her “reasonable medical judgment,” it is necessary (1) to prevent the death of the mother, (2) to prevent a “serious health risk,” defined as a substantial physical impairment of a major bodily function, or (3) to end a pregnancy resulting from rape or incest if the unborn child’s gestational age is at six weeks or less. Notably, mental health conditions like anxiety or depression are excluded from the health risk exception. Any physician who violates the statute by performing an illegal abortion in North Dakota faces up to five years in prison and a $10,000 fine. While the law is imperfect, it does prohibit most abortions in our state. 
 
The lawsuit began in a Bismarck trial court and has been going on for more than two and a half years. Throughout the litigation, the plaintiffs argued that the statute violates the North Dakota Constitution on two main grounds: first, that the law is unconstitutionally vague and fails to give physicians fair notice of when they may legally perform an abortion under the exceptions; and second, that it infringes on a woman’s supposed fundamental right to obtain an abortion before fetal viability outside the womb. The state defended the statute, asserting that it provides adequate and fair warning to physicians who comply with its requirements, and emphasizing that abortion has never been recognized as a fundamental right under the North Dakota Constitution except when necessary to protect the mother’s life or health.
 
The case proceeded until September of 2024 when the Bismarck trial judge issued a radical decision expanding abortion rights in North Dakota beyond what they had been even under Roe v. Wade. Ruling in favor of the plaintiffs, the trial court held that the law is unconstitutionally vague and therefore violates an abortionist physician’s due process right to be given fair notice of prohibited conduct, and that under the North Dakota Constitution there is a fundamental right to abortion for any reason whatsoever before fetal viability, including for mental health reasons. 
 
The state appealed the case to the North Dakota Supreme Court, and both sides submitted briefs presenting their arguments. The North Dakota Catholic Conference joined the state’s appeal and filed its own brief, contending that there is no evidence whatsoever of a fundamental right to abortion for mental-health reasons. The Court heard oral arguments in March 2025 but did not issue its final decision until eight months later.
 
On Nov. 21, 2025, the North Dakota Supreme Court finally issued a 2-3 decision that effectively upheld the state’s abortion ban: two justices (Tufte and Jensen) found the law constitutional, while three justices (Crothers, McEvers and Narum) concluded it was not. In an unusual twist to the case, Judge Narum, a district court judge, sat on the case in place of Justice Bahr, who recused himself because he had previously served as North Dakota’s Solicitor General defending the abortion statute before joining the high court. 
 
Under the North Dakota Constitution, a law passed by the state legislature is presumed to be constitutional and can only be invalidated by the state Supreme Court as unconstitutional by a supermajority (at least four of the five justices). This requirement is designed to prevent courts from too readily overturning laws enacted by the people’s representatives in the North Dakota Legislature. Consequently, although the majority wanted to strike down the law, the absence of a supermajority meant that the trial court’s ruling was reversed, and the state’s abortion ban upheld. 
 
Justice Crothers wrote the majority opinion and focused solely on the claim that the statute’s exceptions allowing for an abortion to preserve the life or health of the mother were unconstitutionally vague. According to Crothers, a doctor acting with an honest but mistaken belief that an abortion was necessary to protect a mother’s life or health could be criminally prosecuted, which he claimed unfairly penalizes medical professionals acting in difficult circumstances.  
 
Justice Tufte authored the minority opinion that ultimately prevailed in the case. Tufte flatly rejected the vagueness challenge, concluding that the statute gives physicians adequate and fair warning about when an abortion is permitted or prohibited. Tufte stressed that no statute can be drafted with absolute precision to cover every medical situation, but that this statute offers sufficient guidelines to prevent arbitrary and discriminatory enforcement and provides fair notice to a reasonable person of what conduct is allowed or forbidden. Tufte likewise dismissed the claim that the North Dakota Constitution contains a fundamental right to abortion, pointing out that when the constitution was adopted in 1889, it could not possibly have included a right to abortion since abortion was illegal in North Dakota at that time, except when necessary to prevent the mother’s death. According to Tufte, evolving public opinion cannot create a right to abortion in the state constitution; only a constitutional amendment—not a judicial reinterpretation—can do so. 
 
While we should celebrate this court decision as a major pro-life victory, we must also acknowledge that this win was by a razor-thin margin of just one vote on a deeply divided Supreme Court. The Christian pro-life community should be clear-eyed in recognizing that pro-abortion advocates will view this outcome as just a temporary setback. We must therefore remain fervent in prayer, vigilant in our efforts and proactive in resisting any attempts to enshrine abortion as a fundamental right in our state.