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.