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N.D. Sup. Ct. Upholds Drug-Induced Abortion Restrictions

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By Mark Wilson, Esq. on November 04, 2014 12:37 PM

North Dakota has some of the most restrictive abortion laws in the country. Earlier this year, a federal judge said the law -- which prohibits abortion after a fetal heartbeat can be heard, which can be as soon as six weeks after conception -- was unconstitutional.

The state supreme court last week dealt with another provision of the law, this one outlawing non-surgical abortion by medication. The court's procedure requires four of the five justices to agree in order to rule a statute unconstitutional, but only three agreed. Chief Justice Gerald VandeWalle and Justice Dale Sandstrom said the law was constitutional.

On-Label Use Only!

HB 1297 amended North Dakota's abortion laws in 2011, clarifying that it encompassed abortions accomplished through medication as well as by surgery. North Dakota is also one of those states where the physician is required by law to provide a whole bunch of information designed to dissuade a woman from having an abortion.

Section 6 of the bill outlaws the prescription of an abortion-inducing drug unless the physician follows the FDA guidelines for administering the drug. Sounds reasonable, right? Except the vast majority of use of the drug is "off-label." Evidence over the last 14 years has allowed physicians to conclude that it can be administered in two clinic visits instead of three, in lower doses, and even at home. Of course, the FDA guidelines don't say that, so physicians in North Dakota are stuck adhering to the FDA guidelines. (The FDA doesn't prohibit "off-label" uses of prescription drugs.)

This Opinion Is Quite Enormous

The petitioners in this case claimed that HB 1297 effectively banned all medical abortions in the state, because the physician would also have to enter into an exclusive emergency services agreement with another physician, a requirement which the lower court said was "impossible to satisfy."

The Chief Justice concluded that the case could be decided under the North Dakota constitution, because its status under the federal constitution was never litigated. (Justice Sandstrom concurred with the chief on this point.) He then concluded that North Dakota had no separate right of abortion, nor was he inclined to find one in it. Surprise! No strict scrutiny. He also construed HB 1297, on the face of it, not to prohibit all drug-induced abortions but rather to require physicians to follow the FDA's "final printed label" protocol for such abortions.

Justice Carol Ronning Kapsner, who would have found the law unconstitutional, said the right to an abortion was fundamental and applied strict scrutiny. She concluded there was no compelling medical reason to limit the use of the drugs to just their final label, as plenty of medical evidence indicated the off-label use was safe. Indeed, the fact that patients have to take fewer doses saves them money; the fact that they can take the drugs at home makes them more comfortable. All these factors, she said, outweigh the state's questionable need to keep the drug administration on-label.

Justice Daniel Crothers also would have found the law unconstitutional and said there was no reason to limit analysis to just the state constitution.

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