In Access Independent Health Services, Inc. v. Wrigley, (ND Sup. Ct., Nov. 21, 2025), the North Dakota Supreme Court reversed a trial court's decision that had invalidated North Dakota's statute that bans most abortions. While 3 of the Supreme Court's 5 justices held that the abortion law is unconstitutionally vague, North Dakota's constitution provides that it takes 4 of the Court's 5 justices to invalidate a law passed by the legislature. The Court's vote thus upholds the constitutionality of the ban. Justice Crothers opinion for 3 justices said in part:
To the extent an abortion implicates a legal defense justifying or excusing the use of force, N.D.C.C. ch. 12.1-19.1 introduces an apparent conflict of law in North Dakota. A physician who acts with an honest but mistaken belief that an abortion was necessary to protect the life or health of a pregnant patient would be guilty of a crime under the objective reasonableness standard set out by N.D.C.C. ch. 12.1-19.1. Simultaneously, under the subjective reasonableness standard that applies to defenses under N.D.C.C. ch. 12.1-05, the same physician would be innocent because his belief that the abortion was necessary, although mistaken, was honest. On their face, these conflicting standards make it unclear whether a physician who performs an abortion in good faith will nonetheless suffer criminal penalties....
We agree with the district court that, in the context of medical care the Plaintiff physicians perform with the intent of protecting the lives and health of their patients, N.D.C.C. ch. 12.1-19.1, does not give fair warning and allows for discriminatory and arbitrary enforcement....
Justice Tufte writing for two justices, said in part:
I depart from the majority opinion in two significant respects. First, the majority opinion extends to the natural rights guaranteed by Article I, Section 1, the more stringent vagueness standard we have previously reserved for First Amendment rights that receive the additional protection of the chilling effect doctrine. Second, the majority opinion extends our precedent to allow a pre-enforcement facial challenge in which the challengers present only hypothetical future conduct as the basis for the testifying experts’ disagreement about the legal application of the statute. The parties’ presentation of witnesses having expertise in medicine or history who disagree about lawyer-crafted hypotheticals is not a sufficient basis for a court to declare a statute unconstitutionally vague....
The rights guaranteed by Article I, Section 1, are those natural rights as they were known to the people of North Dakota at the time the constitution was adopted. These natural rights were fixed at that time, and our judicial duty is to ensure that they “shall not be infringed.” These rights are protected from legislative overreach because they are excluded from the state’s broad legislative power.
... [T]he natural rights that every North Dakota citizen has “by nature” include an individual right to seek medical care without risk of criminal prosecution, including but not limited to abortion, when reasonably necessary to preserve the individual’s life.... Section 1 does not imply a right to abortion as such, and evolving public opinion on abortion cannot create one—only a constitutional amendment can do that.... Section 1 limits state power to regulate abortion where it is a necessary means to the constitutionally protected end of "defending life."
AP reports on the decision. [Thanks to Scott Mange and Thomas Rutledge for the lead.]
