MKB Management Corp. v. Burdick

State court challenge to a North Dakota law that would effectively ban all medication abortions in the state by requiring compliance with conditions for the provision of “abortion-inducing drugs” that are impossible to meet if the law is interpreted to cover misoprostol, a drug commonly used in medication abortions. The complaint was filed in July 2011, and the law was temporarily blocked pending a hearing. In February, the temporary injunction was extended, and the state was enjoined from enforcing the law during the pendency of the case. In addition, in May 2013, the complaint was amended to also challenge SB 2305, a law requiring that any physician performing abortions obtain admitting privileges at a local hospital. In July 2013, the court issued a permanent injunction prohibiting enforcement of the 2011 law and left for determination only any new issues created by SB 2305. North Dakota appealed the permanent injunction of the 2011 law and the temporary injunction of the 2013 law to the North Dakota Supreme Court. The parties settled the portion of the case challenging the admitting privileges requirement in SB 2305 because the providers obtained privileges. Current Status: Three of the five judges on the North Dakota Supreme Court concluded that the medication abortion restrictions are unconstitutional. However, the North Dakota Constitution requires at least four judges to agree to declare a law unconstitutional. Because the four-judge threshold was not met, the law is in effect. Plaintiffs have stopped providing medication abortions and have petitioned the North Dakota Supreme Court for clarification of its ruling regarding the law’s effect on the use of misoprostol as well the parameters of the admitting privileges requirement for medication abortion providers. (See the 2011 law here. See the 2013 law here. See the complaint here. See the February 2012 temporary injunction order here. See the permanent injunction here. See the North Dakota Supreme Court opinion here. Read more about the case here.)