March 2023 Update
Measures to protect reproductive care
And on March 16, North Dakota’s Supreme Court upheld a lower court’s decision to block the state’s abortion ban, saying the state Constitution protects abortion rights in specific circumstances (Decision here
.). The majority opinion in the case, which is expected to be appealed, states that the state Constitution protects “the right to enjoy and defend life and a right to pursue and obtain safety.” This, in the view of the court, includes the right of pregnant persons to “obtain an abortion to preserve her life or health.” Notably, the court acknowledged the right of the state legislature to regulate abortion, but that they were nonetheless convinced that opponents of the ban convincingly argued that “there is a fundamental right to an abortion in the limited instances of lifesaving and health-preserving circumstances, and the statute is not narrowly tailored to satisfy strict scrutiny,” the legal standard that applies in this case. Abortion opponents in the legislature, anticipating this stance from the court, have already introduced legislation that would allow exceptions in cases of rape or incest up until six weeks of pregnancy (Utah SB 2150
). Abortion rights advocates point out that most people are not aware they are pregnant by six weeks. At time of publication of this report, the legislation is awaiting full House consideration.
as of July 2022
Trigger Law Statutory Cite(s)
Does this law have a potential impact on IVF/Reproductive medicine?
Why or why not?
- Seemingly no impact on IVF or other ART procedures.
- The trigger law defines abortion to mean “the use or prescription of any substance, device, instrument, medicine, or drug to intentionally terminate the pregnancy of an individual known to be pregnant.”
- This applies to the termination of the pregnancy of a person who is known to be pregnant.
Does this law explicitly reference IVF, assisted reproductive technology or reproductive medicine?
There are no explicit references to IVF or reproductive medicine services.
Are there any penalties in this law that could apply to ART procedures?
The law does not appear to be applicable to ART procedures.
- “Abortion” is defined as the “use or prescription of any substance, device, instrument, medicine, or drug to intentionally terminate the pregnancy of an individual known to be pregnant, but does not include “an act made with the intent to increase the probability of a live birth; preserve the life or health of a child after live birth; or remove a dead, unborn child who died as a result of a spontaneous miscarriage, an accidental trauma, or a criminal assault upon the pregnant female or her unborn child.”
Do the definitions/terms of the trigger law apply to other areas of state code?
The trigger law is part of the North Dakota criminal code, but the definitions referenced only apply to the abortion section.
What is the “trigger” for this law to take effect?
The trigger law is effective when:
Key provisions: What does the law prohibit and when does it apply?
- The law makes it a “class C felony for a person, other than the pregnant female upon whom the abortion was performed, to perform an abortion.”
- Abortion is defined to mean “the use or prescription of any substance, device, instrument, medicine, or drug to intentionally terminate the pregnancy of an individual known to be pregnant.”
- There are three affirmative defenses under the Act:
- The “abortion was necessary in professional judgment and was intended to prevent the death of the pregnant female.” The section defines “[p]rofessional judgment” to mean “a medical judgment that would be made by a reasonably prudent physician who is knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.”
- The “abortion was to terminate a pregnancy that resulted from gross sexual imposition, sexual imposition, sexual abuse of a ward, or incest, as those offenses are defined in chapter 12.1-20.”
- The individual “was acting within the scope of that individual’s regulated profession and under the direction of or at the direction of a physician.” A physician is defined as “an individual licensed to practice medicine” in North Dakota. This defense protects workers who work under physician delegation from liability for performing an abortion.