Guest Post: Abortion Ruling Could Be North Dakota’s Roe vs. Wade


Yesterday, Judge Wickham Corwin issued his final ruling on the Red River Women’s Clinic’s challenge to state’s requirements for the use of abortion-inducing drugs.  The reaction of Bishop David D. Kagan of Bismarck and Bishop Thomas J. Folda of Fargo can be found here.

The ruling is not unexpected.  Judge Corwin indicated early in the case that he intended to rule against the state. Nor are some of his legal conclusions a surprise.  He previously stated some of them from the bench and in response to pre-trial motions.

Nevertheless, it is still shocking to read an opinion so far reaching and out-of-step with the law and public opinion.

Most of the fifty-five page opinion contains Judge Corwin’s assessment of the facts and bald-face statements of opinion (e.g., “Such autonomy and self-determination becomes unachievable if women are deprived of the right to terminate an unwanted pregnancy.”)  But before getting to that, Judge Corwin does something that should concern all North Dakotans.  To understand what he did it might help to explain some principles from constitutional law.

The most important rights secured by a constitution are called “fundamental” rights.  Governments can only very rarely infringe on these rights and when they do so they must have a compelling reason and use the least restrictive means.  This is called “strict scrutiny.” These rights include the right to speech and the right to travel.  When the U.S. Supreme Court decided Roe v. Wade it found that the right to abortion was a fundamental right.  In 1992, however, the Supreme Court in Casey v. Planned Parenthood held that the right to abortion was not subject to strict scrutiny, but to a lesser standard called “undue burden.”

The North Dakota Constitution also delineates certain rights.  The state supreme court, however, has never found that the state constitution covers a right to an abortion.  It is not mentioned anywhere.  Moreover, the basis for Roe, the right to privacy, does not exist in the state constitution.

Judge Corwin, however, has discovered a right to abortion in the state constitution.  In fact, he goes so far as to declare that not only does the North Dakota Constitution grant a right to abortion, but that the right is “fundamental” and subject to strict scrutiny. (He even goes beyond the traditional demands of strict scrutiny by insisting that abortion laws must explicitly exempt potential victims of domestic violence.)

First year law students are often taught that “strict scrutiny” means that the government almost always loses.  If, then, as Judge Corwin proclaims, the North Dakota Constitution provides a fundamental right to abortion, much more is at stake than the laws regulating the use of abortion drugs.

North Dakota is consistently ranked as one of the most pro-life states for its laws protecting unborn life to the extent possible under the U.S. Constitution and for its laws protecting children and women from the dangers of abortion.  The fact that those laws are constitutional under the U.S. Constitution are irrelevant according to Judge Corwin’s pronouncement.  Those laws would now be subject to strict scrutiny review under his newly found right to abortion in the state constitution.  Even laws popular among those who call themselves “pro-choice, like parental notification, physician-only requirements, data reporting, and conscience protection for health care workers would be in jeopardy.  North Dakota could go from one of the most pro-life states in the country to one of the most pro-abortion states.

North Dakota Attorney General Wayne Stenehjem says that he will appeal the decision to the North Dakota Supreme Court.  North Dakotans should welcome that action.  Without correction, Judge Corwin’s decision will become the Roe v. Wade for North Dakota.

Christopher Dodson

Christopher Dodson is the Executive Director and General Counsel for the North Dakota Catholic Conference.

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  • grammie

    What can a person say? This judges mine set is scary, He has overstepped any legal right he thinks he had. It breaks my heart to think people are happy about this. If a women didn’t put herself in the position to think they have to make a choice, abortion would not be necessary in the first place. Those that are happy about this should read the health effects from abortions, it causes many illness physical and emotional having the right to an abortion is not women’s health care, it just isn’t.

    • ellinas1

      Do you have a son(s).

      What have you taught them?
      Last time I checked, it still takes two to tango.

      • The Whistler

        Do you have a point?

        • John Smith

          I think ellinas1 is implying that it is the mans fault for getting the woman pregnant. Which, it is both women and men that are at fault. As you say, “it takes two to tango.” You can’t forget about the woman… The majority of the time people lined up for abortion isn’t because of rape. Therefore it is just as much the woman’s fault. Even in cases of rape, you are stilling suggesting the life of the woman is more important than that of her child. Some would disagree and say that the child isn’t, “human.” Therefore it isn’t murder. I would like to say that the child is indeed human because they are simply at a different state of development in a humans life. We are all sons and daughters of parents who choose life!

        • ellinas1

          Yes I do.

          • two_amber_lamps

            As we can see Nambla-man, the point is at the top of your head….

        • two_amber_lamps

          The last person I would EVER tell if you had sons (especially if they’re minors) is ellinas….

  • The Whistler

    Hey Libs. This is the judge that overrode the minimum sentence on someone guilty of raping a 13 year old girl.

    He’s also a sexual harasser.

    I don’t think he’s someone you want to hitch your wagon to.

  • ec99

    One must begin with the understanding that the author of this piece represents an organization, the Roman Catholic Church, which would outlaw all abortion, despite the origin of the pregnancy. That having been said, he brings up a good point as regards the extent to which Corwin may make law by interpreting the ND Constitution. This and the recent ND laws will be subject to review and appeal. Will be interesting to see what the final outcome is.

  • sbark

    Sounds like this Judge has Kennedy syndrome…………….Scalia on Kennedy’s decisions….Scalia said the errors in the Court’s decision in Windsor “spring forth from the same diseased root: an exalted conception of the role of this institution in America.” He seized on Kennedy’s description of the Court’s role in determining the constitutionality of a law as “primary,” and also on Kennedy’s worry that if the Court lacked the power to decide Windsor, then the Court’s role would “become only secondary to the President’s.” Scalia was right to call those sentiments “jaw-dropping,” for indeed they constitute an assertion, as he put it, of “judicial supremacy over the people’s Representatives in Congress and the Executive.”
    ……………Scalia is saying the Judicial branch of Govt wants, actually wants their power to be above the other 2 branches…………and we thought Obama was narcissistic power hungry and arrogant…..

  • headward

    Yet when I want to open carry or purchase a firearm, this is all reported to the government even though it’s a fundamental right. I don’t remember reading the constitution that one should have unrestricted access to abortions.

  • RapeBabies

    Wow, a Catholic lawyer….. The perfect picture of morality.

    • Rob

      Says the person posting under the moniker “rape babies.”

      • RapeBabies

        It’s a reference to the fact that there’s no exemption for rape in all the ND anti-abortion laws, not a reference to your favorite passtime Rob.

        • Dawn

          How do you flag someone? That was completely out of line, vulgar and unacceptable.

        • Rob

          Agree or disagree with Dodson, I think more people are going to take him seriously than someone calling themselves “rapebabies.”

        • Lynn Bergman

          Punish the baby for the wrongdoing of a rapist; liberal logic at its most hypocritical. If I were a baby resulting from a rape I would love my mother dearly for loving me and not judging me by my genes.
          Abortion is murder, not a “respectable” option. those that wish to be respected for murder are despicable. Further, they (both mother and father) always realize the mistake later, causing extreme emotional turmoil… unless they are born without a conscience.

  • Dallas

    Thank you Judge Corwin.