How Originalism Revived an Abortion Ban a Majority of the North Dakota Supreme Court Held Unconstitutional

In a split decision issued late November, North Dakota’s supreme court upheld the state’s draconian abortion ban, which the court had halted for nearly a year. The case is a stark reminder that even as some courts recognize that state constitutional traditions and history require protecting reproductive rights, if originalism controls, injustices of long ago will prevail again today.

An earlier North Dakota Supreme Court ruling said the law was likely unconstitutionally vague and thus insufficient to protect the fundamental rights of North Dakotans to life, safety, and health. But when the appeal on the merits reached the court, two of the five justices doubled down on a history-focused test, similar to that articulated in Dobbs v. Jackson Women’s Health Organization. Because North Dakota requires a supermajority of the court to find a law unconstitutional for it to be struck down, the opinion of those two justices controlled the outcome.

An Originalist Take on Reproductive Freedom

The law challenged in Access Independent Health Services v. Wrigley makes it a crime for anyone to perform an abortion unless it is deemed necessary according to objective “reasonable medical judgment” to prevent the death of or “serious health risk” to the pregnant person. It carries penalties of up to five years in prison and a $10,000 fine. Abortion providers challenged the law, arguing it was unconstitutionally vague and violated their right of due process because it did not make sufficiently clear when they could perform an abortion to protect their patients’ health under the law’s exceptions. The providers also argued the law violated the rights of pregnant people under the state natural rights provisions guaranteeing the right to “enjoy and defend life and liberty” and “pursue and obtain safety and happiness.”

Though their view did not prevail, the three-justice majority reasoned that plaintiffs could bring their facial vagueness claim — that the law was unconstitutional when passed — because the law implicated a constitutional right and had a chilling effect on protected conduct. Specifically, the majority concluded that the ban’s health risk exception “unquestionably” involved the previously recognized fundamental right by defining when a pregnant person’s life and health is “sufficiently in jeopardy” to justify terminating the pregnancy.

And it found the combined effect of the exception’s objective reasonableness standard — which does not necessarily protect a provider who, in their best medical judgment, determines that an abortion is necessary — and the threat of harsh criminal penalties created a significant risk of deterring constitutionally protected care. Indeed, as the majority opinion detailed, extensive record evidence showed health care providers disagreed and even the state’s own witnesses were confused about the meaning of the law, including what qualified as a health risk serious enough to allow intervention. Invoking the principle of constitutional avoidance, the majority stopped short of reaching the lower court’s further holding that the ban “infringes on a woman’s fundamental rights” to “procreative autonomy,” “liberty,” and “to pursue and obtain safety and happiness.”

At the threshold, the dissenting justices disagreed with the majority’s approach to facial vagueness challenges, instead determining that, outside the context of First Amendment rights, a statute will be upheld unless there is no set of circumstances in which the statute could be constitutionally applied. The dissent found the ban cleared that low bar.

But the dissent went much further, anchoring North Dakotans’ rights to its view of how the constitution was understood when adopted in 1889 and defining the scope of the rights of “defending life” and “obtaining safety” exceedingly narrowly. Primarily pointing to laws criminalizing abortion before and at statehood, the dissent suggested a right to abortion existed only when necessary to save the life of the pregnant person. In doing so, the dissent largely disregarded the broader and more protective right recognized by the majority to pursue and obtain health.

Although acknowledging that other state courts have interpreted their state constitutions containing similar natural rights provisions to more broadly protect abortion — such as the New Jersey Supreme Court in Right to Choose v. Byrne — the dissent concluded without explanation that those cases were not instructive. As the Constitutional Accountability Center highlighted in its amicus brief, “New Jersey’s natural rights clause is particularly instructive not only because it is nearly identical to North Dakota’s Inalienable Rights Clause, but also because it was available to the Framers of that Clause in 1889.”

Historical Prejudice

Absent North Dakota’s supermajority rule, the majority opinion would have required striking down the vague law. Instead, the two-justice dissenting opinion controls. While it is still possible that the abortion ban’s application may be challenged by a patient or provider after the ban is enforced, for now, pregnant North Dakotans face an abortion ban with narrow exceptions that are too ambiguous to be workable in practice. As seen in other states, confusion about the medical care permitted under an abortion ban can result in delay or denial of critical health-preserving care and ultimately lead to preventable deaths.

The gender injustice baked into the reasoning and outcome of the dissenting opinion is hard to miss. Especially where it relied on one of the court’s decisions from 1900, in which it explained, “‘If in the judgment of 12 men a miscarriage of the woman was not necessary to save her life, a verdict of guilty may be returned regardless of the motives governing the accused.’” The case is one of a handful the dissent points to as evidence that the “enacting public” at the time of statehood did not consider women to have a natural right to end their pregnancies unless it was a “last resort” to survival or prevention of significant physical harm. This approach aligns with the originalism of Dobbs, tying present rights to historical periods in which women and others were excluded from political participation and denied personal autonomy.

This is not the way past injustices should inform judicial decision-making and interpretation of constitutional rights. Recent decisions out of state high courts in Kansas, Pennsylvania, and Utah demonstrate historical evidence is only a starting point that need not hamstring courts from interpreting their state constitutions to protect abortion and related rights. With consideration of unique state constitutional histories and traditions, courts can identify founding principles — including guarantees of personal autonomy, bodily integrity, privacy, and to make decisions about one’s family — and apply them equally to all individuals, rather than cabining them by historical prejudices.

Progressive Momentum Deflated

The outcome in Access Independent Health Services deflates the more progressive momentum set by the North Dakota Supreme Court’s 2023 decision in Wrigley v. Romanick. In Romanick, the court affirmed a preliminary injunction against a prior version of the state’s abortion ban, which had sprung into effect to criminalize all abortions (providing only narrow affirmative defenses) after Dobbs held there was no federal constitutional right to an abortion.

The court considered the historical regulation and medical practices related to abortion in North Dakota and concluded, consistent with that history, that the state constitution’s provisions guaranteeing the right to “enjoy and defend life” and “pursue and obtain safety” implicitly included the right to obtain an abortion to preserve a pregnant person’s life or health. 

After the Romanick decision, the case was remanded, and the state legislature repealed the challenged law and replaced its affirmative defenses with remodeled exceptions. The lower court in Access Independent Health Services declared the new law unconstitutionally vague and violative of the rights to enjoy life, liberty, happiness, and safety. The parties found themselves back before the high court along with amici scholars and constitutional experts weighing in on the history and scope of North Dakota’s natural rights provision.

The historical analysis that ultimately carried the day shows that combatting originalism is an urgent project, but not a simple one. Jurists will need advocates, experts, and scholars to help excavate, contextualize, and understand all relevant historical evidence — beyond the states’ earliest laws as they were enforced by men living hundreds of years ago.

That is why the Center for Reproductive Health, Law, and Policy — where we work — has created “History in Reproductive Rights Cases: A post-Dobbs Resource Hub.” This resource collects summaries and links to notable decisions, amicus briefs, expert reports, and scholarly works to support a critical approach to history and inform state constitutional interpretations that secure stronger reproductive rights for future generations. 

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This latest high court decision is tragic for North Dakotans and tethers abortion rights today to criminal bans of the past. But it is not where we are headed. Voters in ten state have enacted reproductive freedom amendments and other sister state court decisions are safeguarding reproductive rights. As Wisconsin Supreme Court Chief Judge Jill Karofsky wrote in a concurrence agreeing that an 1849 criminal abortion could no longer be enforced, abortion bans are the relic of “a world that must be left behind,” in order to “remain on the side of history that values the health and well-being of all people.”

Diana Kasdan is the legal and policy director of UCLA Law’s Center on Reproductive Health, Law, and Policy.

Amanda Barrow is a senior staff attorney with UCLA Law’s Center on Reproductive Health, Law, and Policy.

Suggested Citation: Diana Kasdan & Amanda Barrow, How Originalism Revived an Abortion Ban a Majority of the North Dakota Supreme Court Held Unconstitutional, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ(Dec. 8, 2025), https://statecourtreport.org/our-work/analysis-opinion/how-originalism-revived-abortion-ban-majority-north-dakota-supreme-court