A North Dakota court did it — took women seriously. Congress should, too.

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A state district court in North Dakota did a surprising thing a couple of weeks ago: It took seriously the humanity and legal rights of North Dakota women. The question is why American women and other people with uteruses do not automatically have such rights, but instead must depend on the goodwill of legislators and judges in their individual states to grant them.

The case involved the Red River Women’s Clinic’s constitutional challenge to amended abortion prohibitions that the North Dakota legislature enacted after the Supreme Court overturned Roe v. Wade in 2022. The amended law made it a class C felony to perform an abortion, with two limited exceptions. First, a physician could perform an abortion “deemed necessary based on reasonable medical judgment which was intended to prevent the death or a serious health risk to the pregnant female.” Second, an abortion prior to six weeks’ gestation could be performed where, “based on reasonable medical judgment, [the pregnancy] resulted from gross sexual imposition, sexual imposition, abuse of a ward, or incest … .”

The district court held that neither of these exceptions gave physicians a sufficient understanding of when either would apply. This would potentially subject physicians to prosecution and conviction even if they had made a good-faith judgment concerning the applicability of the relevant standard. This is no small matter. We have seen the terrible consequences of vague or absent life and health exceptions to abortion bans around the country.

But even more important, Judge Bruce Romanick, who wrote the opinion, also held that North Dakota women have a fundamental right to “retain the ultimate control of [their] own destiny,” including the right to obtain an abortion prior to viability.

The North Dakota Constitution gives individuals “certain inalienable rights,” including the right to life and liberty, the right to accumulate property, and the right to “pursue and obtain safety and happiness.” Judge Romanick observed that women, and not just men, have the right to life, liberty, property, safety and happiness under the state’s Constitution. The right to pursue happiness — “the mainspring of human activities” — was especially important. It includes but is not limited to “personal freedom, exemption from oppression or invidious discrimination, [and] the right to follow one’s individual preference in the choice of an occupation and the application of his energies.”

Until 1984 when it was amended, this constitutional provision facially applied only to men. This was no oversight, according to the court, as “the men who drafted, enacted, and adopted the North Dakota constitution … likely would not have recognized the interests at issue in this case because, at that time, women were not treated as full and equal citizens.”

By treating these points as relevant facts in the opinion, Romanick parted ways with prevailing Supreme Court jurisprudence. Notoriously in Dobbs, Justice Samuel Alito’s majority opinion barely acknowledged that men, and only men, enacted the constitutional provisions and historical abortion laws at issue.

Under better circumstances, Romanick’s decision to recognize women’s legal and thus also reproductive rights would not surprise us. Under better circumstances, if the state attorney general appealed the case and North Dakota’s Supreme Court decided to affirm Romanick’s opinion, it would not surprise us. Such decisions should be normal and expected. Women and all other people with a uterus should have the same right as cisgender men to decide what’s best for their own lives. For women, that must include whether and when to give birth to a child.

In this post-Roe world, nearly one-third of reproductive-age women live in states with abortion bans. They cannot reliably control their reproductive futures. Their plans, education, jobs, relationships and families can be knocked askew with a single contraceptive failure.

We Minnesotans might not have to worry about this — for now. But this is not a matter that should be decided on a state-by-state basis, any more than any other civil rights issue should be decided on a state-by-state basis. Women deserve equal rights. We deserve nationwide, federal protection for those equal and reproductive rights, including the right to obtain an abortion when wanted or needed.

Laura Hermer is a professor at Mitchell Hamline School of Law.