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New Hearing Sought Over Court Ruling That Ended Medication Abortion in N.D.

November 14, 2014 — The only abortion clinic in North Dakota on Wednesday petitioned the state Supreme Court to rehear a case and "resolve any lingering ambiguity" over a ruling that upheld a state law (HB 1297) restricting medication abortion, the AP/Miami Herald reports.

The clinic, Red River Women's Clinic in Fargo, stopped providing medication abortion drugs after the ruling, although it still provides surgical abortions (MacPherson, AP/Miami Herald, 11/13).

Background

The North Dakota law mandates that any drug used to induce abortion must meet FDA protocols and that its label states that it is approved for use in abortion care. Thus, the law bars the use of misoprostol -- one of the two drugs used in medication abortions -- because the drug is labeled for the treatment of stomach ulcers.

The law was set to take effect in August 2011, but North Dakota District Judge Wickham Corwin blocked it while the lawsuit proceeded. In July 2013, the judge struck down the law as unconstitutional, but the state appealed.

Attorneys for the clinic have noted that the two-drug medication abortion regimen of mifepristone and misoprostol is widely accepted in the medical community. The clinic performs about 1,300 abortions annually, about 20% of which have been medication abortions, according to clinic director Tammi Kromenaker.

Last month, three of the state Supreme Court's five judges agreed that the law is unconstitutional, but the state requires a four-judge majority to strike down a law (Women's Health Policy Report, 10/29).

Basis for Rehearing Request

The clinic, represented by the Center for Reproductive Rights, noted that while the court wrote that HB 1297 did not ban medication abortions outright, the "practical effect" of the law is indeed a ban because performing a medication abortion requires both misoprostol and mifepristone (AP/Miami Herald, 11/13).

Further, the clinic is requesting clarification as to whether a physician who has admitting privileges at a hospital within 30 miles of their facilities, as required by a separate state law (SB 2305), would be allowed to enter into contract with a separate physician in emergency situations that involve medication abortion drugs.

HB 1297 only allows physicians to dispense medication abortion drugs if they have a signed contract with a separate doctor who has "active admitting privileges and gynecological and surgical privileges" and "who agrees to handle emergencies associated with the use or ingestion of the abortion-inducing drug" (Forum News Service/Bismarck Tribune, 11/13).