Judge Intends To Strike Down N.D. Law Governing Medication Abortions

April 19, 2013 — A North Dakota judge on Thursday said he plans to strike down as unconstitutional a 2011 state law that would have effectively banned medication abortions, the Grand Forks Herald reports. The judge said he will issue his final written opinion at a later date (Nowatzki, Grand Forks Herald, 4/18).

The law was set to take effect in August 2011, but the Center for Reproductive Rights filed a lawsuit on behalf of the Fargo-based Red River Women's Clinic, arguing that the law unconstitutionally restricts abortion access for women. North Dakota District Judge Wickham Corwin halted the law from taking effect while the suit proceeded.

The measure mandates that any drug used to induce abortion must meet FDA protocols and that its label must state it is intended for use in abortion care. The law would prohibit the use of misoprostol -- one of the two drugs used in medication abortions -- because the drug is labeled for the treatment of stomach ulcers (Women's Health Policy Report, 2/21/12).

Judge's Decision

After arguments in the case concluded on Thursday, Corwin said he remains "convinced that a woman's reproductive rights must be protected under the state constitution and must be recognized as fundamental." The three-day trial did nothing to change the views he outlined in a memorandum of opinion last February, he said.

The law is "simply wrong-headed" and does not "logically address any concerns" or do anything "to promote women's health," he added.

State Appeal Likely

In response to Corwin's announcement, Attorney General Wayne Stenehjem (R) said in a statement that the state will "very likely" appeal the ruling.

The issue "is clearly of sufficient magnitude that the final determination of the constitutionality of the statute should ultimately be made by the state's highest court," he said.

Autumn Katz -- an attorney for CRR -- said the center is prepared to litigate the case as long as necessary. While pleased with the outcome of the trial, Katz noted that the state Legislature still "seems to be treating women in North Dakota as second-class citizens and feels the need to deprive them of the rights that women in other states have." Gov. Jack Dalrymple (R) has signed four antiabortion-rights bill this year (Grand Forks Herald, 4/18).

Key Testimony

The trial featured testimony from women's health experts who discussed common protocols for medication abortions and the procedure's safety.

Daniel Grossman, an assistant clinical professor at the University of California-San Francisco, said off-label drug use in general is "very common." If the law took effect, "[w]omen would lose their choice to have a [medication] abortion" because doctors could not prescribe both necessary drugs.

Siri Fiebiger, an obstetrician in Fargo and a clinical professor at the University of North Dakota's medical school, noted in her testimony that misoprostol has other off-label uses, including to induce labor and to treat postpartum hemorrhage. She added that restricting some off-label uses while permitting others "makes absolutely no sense" and has no medical justification.

During cross-examination, Assistant Attorney General Jeanne Steiner posed a line of questions intended to suggest that medication abortions are less effective and less safe than surgical abortions.

Grossman testified that surgical abortions are effective 99% of the time, compared with 96% for medication abortions. He added that a surgical abortion generally takes 10 minutes or less to perform, followed by 30 minutes of observation, during which the patient might experience light bleeding. By comparison, bleeding related to a medication abortion lasts an average of 10 days but can continue for up to 45 days, Grossman said (Nowatzki, Forum of Fargo-Moorhead, 4/17).

During Thursday's testimony, the state's expert witness -- Donna Harrison, executive director of the American Association of Pro-Life Obstetricians and Gynecologists -- cited a foreign study that found the overall incidence of adverse events was four times higher for medication abortions than surgical abortions. However, she acknowledged that the study concluded both procedures are safe. On cross examination, she added that the study did not detail the drug regimens used and found no difference in infection rates between the two methods (Grand Forks Herald, 4/18).