North Dakota

North Dakota

The pre-Roe statutes prohibited performance of an abortion on a pregnant woman unless the procedure was “necessary to preserve her life,”^¹ and made a woman’s participation in her own abortion a criminal offense (subject to the same exception).^² Pursuant to Roe, these statutes were declared unconstitutional by a federal district court in Leigh v. Olson,^³ and were later repealed.^⁴ The statutes would not be revived by a decision overruling Roe v. Wade.

Recently, the North Dakota Legislature passed a "trigger" law which would make abortion illegal except "to prevent the death of the pregnant female, and in cases where the pregnancy resulted from "gross sexual imposition, sexual imposition, sexual abuse of a ward, or incest," all of which are treated as affirmative defenses.^⁵ The law takes effect "on the date the legislative council approves by mothion the recommendation of the attorney general to the legislative council that it is reasonably probable that Section 1... would be upheld as constitutional."^⁶

^¹ N.D. Cent. Code §§ 12-25-01, 12-25-02 (1970).

^² Id. § 12-25-04. No prosecutions were reported under this statute.

^³ 385 F.Supp. 255 (D. N.D. 1974).

^⁴ 1973 N.D. Laws 215, 300, ch 116, § 41.

^⁵ H.B. 1466, § 1. The Governor signed the bill into law on April 26, 2007.

^⁶ Id. § 2. Apart from H.B. 1466, it is doubtful that North Dakota’s post-viability statute, see N.D. Cent. Code § 14.02.1-04(3) (1997), would effectively prohibit post-viability abortions because it allows abortions for mental, as well as physical, health reasons. As the experience in California demonstrated, mental health exceptions were widely abused. See People v. Barksdale, 503 P.2d 257, 265 (Cal. 1972) (noting that more than 60,000 abortions were reported in 1970, more than 98% of which were performed for alleged reasons of mental health).