North Dakota's only abortion clinic files lawsuit to block enforcement of trigger ban

North Dakota's only abortion provider filed a lawsuit in state court Thursday attempting to block enforcement of the state's trigger ban.

The trigger law, passed in 2007 by the North Dakota legislature, would ban nearly all abortions in the state after the U.S. Supreme Court overturned Roe v. Wade last month. North Dakota Attorney General Drew Wrigley certified the Supreme Court decision a few days after the ruling came down in Dobbs v. Jackson Women's Health Organization, meaning North Dakota's trigger ban is due to go into effect on July 28, 30 days after his certification.

In the lawsuit, the Red River Women's Clinic argues the ban goes against the state constitution.

"The Abortion Ban unconstitutionally deprives Plaintiffs' patients of their right to life, safety, and happiness" guaranteed under the state constitution, the lawsuit alleges, "by prohibiting all abortions except in cases of rape, incest, or to protect the life of the pregnant woman."

The lawsuit also disputes on a technicality the date the ban is due to go into effect. The clinic argues that while the U.S. Supreme Court issued its opinion overturning Roe v. Wade on June 24, it has not yet issued a judgment, which is a separate order issued after the opinion.

"We have faced relentless attacks from North Dakota lawmakers who have long wanted us gone, but we will fight this draconian ban like the other outrageous bans and restrictions that came before it," Tammi Kromenaker, director of the Red River Women's Clinic, said in a statement. "In the meantime, we will keep our doors open to provide abortion care to patients who need us. Being the last remaining abortion clinic in the state, our patients already have to travel long distances just to reach us. Our patients deserve the right to access essential health care if and when they need it regardless of ZIP code."

Wrigley said in a statement that state attorneys are carefully reviewing and evaluating the complaint. "I will reserve further comment until our formal response is complete and filed with the district court," he said.

The Red River Women's Clinic is scrambling to open a new location across the state border in Moorhead, Minn., to ensure it continues to provide abortion services when North Dakota's trigger ban goes into effect. North Dakota is one of 13 states with a trigger ban; Minnesota has no such ban.

The clinic has been operating in Fargo for nearly a quarter-century and serves all of North Dakota, part of South Dakota and northwest Minnesota. While the private clinic also provides pregnancy testing, birth control and testing for sexually transmitted infections, it is primarily an abortion provider.

According to state data, the clinic performed 1,171 abortions in 2020. In the majority of those, patients listed North Dakota as their state of residence, but 276 of those patients were from Minnesota.

Though North Dakota law now allows abortion up to 20 weeks of pregnancy, the Fargo clinic currently provides abortions up to 16 weeks and 6 days, because of the logistics of staffing the clinic with out-of-town doctors. That limit likely won't change if the clinic moves to Moorhead, Kromenaker has said.

Under the North Dakota trigger law, abortion providers who continue to operate there could face a maximum of five years in prison and a $10,000 fine.

The lawsuit alleges that the trigger ban would violate the rights of the clinic's patients because carrying a pregnancy to term has significantly more health risks for women than undergoing an abortion procedure.

"The Supreme Court may have abandoned its duty to protect our fundamental rights, but the fight is far from over," Nancy Northup, president and CEO of the Center for Reproductive Rights, a New York-based advocacy organization, said in a statement. "We are determined to fight state by state and law by law to preserve abortion access wherever we can."

North Dakota Right to Life disparaged the lawsuit as a "desperate delay tactic."

"In a case from 2014, the North Dakota Supreme Court did not find evidence of a constitutional right to have an abortion in our state constitution. Because of this, declaring that there is a constitutional right to abortion is absurd and a waste of time," McKenzie McCoy, North Dakota Right to Life's executive director, said in a statement. "North Dakotans have repeatedly shown that we do not want abortion in our state, and the laws affirm that."