North Dakota’s abortion ban survived a lawsuit after the state Supreme Court failed to gain the supermajority needed to overturn the law.
The November 21, 2025 ddecision turns one over ruling of the lower court last fall, the law was deemed unconstitutionally vague and established that women have the right to have an abortion up to the point where the fetus is viable.
Three of the five judges found the law unconstitutional: Daniel Crothers, Lisa Fair McEvers and Daniel Narum, a North Dakota District Court judge who heard the case instead of Douglas Bahr, who denied it. Chief Justice Jon Jensen and Justice Jerod Tufte found the law constitutional. It takes a vote of at least four justices to declare a law unconstitutional.
The ruling follows more than two years of litigation over the statute, which was signed by former North Dakota Governor Doug Burgum in April 2023, just weeks after the Supreme Court struck down a previous abortion ban.
The law prohibits abortion in all cases except rape or incest if the mother has been less than six weeks pregnant, or if the pregnancy would be considered a serious threat to physical health based on “reasonable medical judgment.” Mental disorders do not count as serious health risks under the ban.
The abortion ban provides for penalties of up to five years in prison and a fine of up to $10,000 for anyone who breaks the law.
A group of reproductive health care doctors and an abortion clinic are suing North Dakota over the policy, arguing that it doesn’t solve any problem the Supreme Court identified with the previous ban. Prosecutors said the law endangers the lives of pregnant people and denies doctors due process by not specifying when an abortion can be performed for health reasons.
The state of North Dakota insisted the ban is not vague and is necessary to protect “unborn children.”
Crothers, Fair McEvers and Narum, in their majority opinion, agreed with the district court’s conclusion that the law is unconstitutionally vague.
The justices highlighted several pages of testimony from doctors who testified for North Dakota and who appeared to have differing opinions on how the law works, including what counts as a “serious health risk” and what “reasonable medical judgment” means.
“The state witnesses all stated that they understood the law, but when asked about the meaning of key terms, the experts gave unclear and often contradictory answers,” they wrote.
The justices also noted that the statute appears to conflict with laws regarding self-defense and the defense of others.
If ordinary citizens cannot understand how a law works, they cannot follow it, the judges wrote. This also poses the risk of “discriminatory and arbitrary” enforcement of the law by North Dakota, she added.
“It is the responsibility of the Legislature to clearly define the limits on the exercise of state police power by the executive branch,” the majority opinion said.
The three justices concluded that the court ruled correctly in striking down the law, but declined to take a position on the lower court’s conclusion that abortion is legal up to the point where the fetus is viable.
In their dissent, Tufte and Jensen disagreed that the law is unconstitutionally vague.
They wrote that to show that the law is vague, plaintiffs would have had to provide evidence that the law was unevenly enforced. Instead, prosecutors based their case on “hypothetical future conduct” rather than reality, they wrote.
“The serious health risk exception does not provide a clear answer to every conceivable situation,” Tufte and Jensen wrote. “No statute can do that. This statute provides minimal guidelines to prevent arbitrary and discriminatory enforcement, and also provides fair warning to a reasonable person about what conduct is prohibited.”
The dissenting justices wrote that when North Dakota adopted its constitution in 1889, abortion was illegal except when necessary to save the life of the mother. They said there is no evidence that the authors of the North Dakota Constitution intended to provide expanded abortion rights.
The state constitution “by itself does not imply a right to abortion, and changing public opinion on abortion cannot create one — only a constitutional amendment can do that,” they wrote.
North Dakota’s Republican-dominated Legislature passed the 2023 bill with overwhelming support from both chambers.
State Senator Janne Myrdal, a Republican and anti-abortion advocate for the WHO sponsored the legislationsaid he was grateful for the ruling.
“What was clear was that North Dakota believes in the life of the mother and the child, unborn or born, and we will continue to do so,” Myrdal said.
The North Dakota Catholic Conference, which lobbied in support of the law, said it was pleased the decision reverses a “radical decision” by the district court judge.
State Rep. Karla Rose Hanson, a Democrat who has sponsored bills promoting reproductive rightssaid she was “deeply disappointed” by the decision.
“My concern remains that women’s lives and physicians’ livelihoods are at risk because of this law,” Hanson said. “Abortion bans make it more dangerous to be pregnant as doctors worry about the legal consequences.”
She pointed out that the rape and incest exceptions only apply to the first six weeks of pregnancy, before many women know they are pregnant.
North Dakota Attorney General Drew Wrigley, in a statement Friday, called the law “important pro-life legislation enacted by the people’s legislature.”
North Dakota Gov. Kelly Armstrong said late Friday that he supported the U.S. Supreme Court’s decision allowing states to set their own laws regarding abortion.
“I appreciate the North Dakota Supreme Court’s ruling upholding current state law, which protects life and includes exceptions for rape, incest and maternal health,” Armstrong, a Republican, said in a statement.
Christina Sambor, a Bismarck, North Dakota, attorney who represented the plaintiffs, said the dissenting justices are wrong in laying out their analysis of the law about how North Dakotans viewed women’s rights in 1889.
She also disagreed with Jensen and Tufte’s conclusion that the plaintiffs based their arguments on hypothetical scenarios.
“The unnecessarily increased dangers experienced in childbirth in our state as a result of this law are in no way hypothetical,” she said. “It is extremely disappointing that this law remains in place and continues to cause harm.”
In its 2023 ruling declaring the state’s previous abortion ban unconstitutional, the North Dakota Supreme Court ruled that women in North Dakota have the right to an abortion for health reasons. The state Supreme Court also ruled that the state may pass laws restricting access to abortion to protect fetuses, as long as the laws do not needlessly infringe on other fundamental rights.
North Dakota does not have an abortion provider. Red River Women’s Clinic – one of the plaintiffs challenging the abortion ban – previously operated in Fargo, North Dakota, but then moved to Moorhead, Minnesota. Executive Director Tammi Kromenaker said most of the clinic’s patients are from North Dakota.
“We know that people will always need and seek this care, and making it illegal only makes it more difficult – and in some cases less safe – to get,” she said in a statement. “We will continue to fight for the freedom and dignity of North Dakotans.”
Reporter Michael Achterling contributed to this report.
This story was written by Maria Steuer and originally published by North Dakota Monitor. North Dakota Monitor is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. North Dakota Monitor maintains editorial independence. If you have any questions, please contact editor Amy Dalrymple: [email protected].
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