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Earlier today I read afisher's diary along with the Guardian story linked in it about Fargo Judge Wick Corwin's decision striking down a ND abortion law as unconstitutional. After obtaining a copy of the opinion, I wrote to Erik Eckholm, the Times' reporter who has written most recently about state-level abortion legislation to inquire why there was no mention of it in the Times. I sent along a link to the 55 page decision along with a link to the Guardian piece. Eckholm's response came quickly. To read it, get a little explanation of what the decision itself is all about, and find a link to the opinion, please come with me below the orange squiggle.

Eckholm wrote:

Thank you for writing. Frankly there are so many abortion-related bills, suits and decisions these days that we have to make choices and sometimes bundle developments in broader, thematic stories.  

As we recently reported, the Supreme Court may take up the constitutionality of imposing original dosage etc for medication abortions, based on an Oklahoma court decision similar to this one in North Dakota. Just Sunday I noted the Texas effort to restrict medication abortions and the likely impacts. Related measures re dosage or tele-medicine have passed or are under court challenge in other states.  

Certainly we’ve given a lot of coverage to abortion laws and lawsuits in North Dakota and I won’t be surprised if this latest decision isn’t mentioned in some future story about either North Dakota or national trends in abortion regulation. But this particular law had previously been enjoined and never took effect, the final decision was not a surprise and there are much bigger North Dakota abortion issues before the courts right now.

As the Guardian story says, Monday's decision relates to a law passed in 2011 that would have outlawed "medical abortions," that is, those induced by the use of drugs (as opposed to "surgical abortions" which, though not really "surgical" at all, typically involve vacuum aspiration of the womb).  Eckholm is correct that this lawsuit was covered earlier by the Times. Judge Corwin issued a temporary restraining order prohibiting its enforcement long ago and then conducted a trial in April. In the earlier TRO opinion (another long one) he had made it pretty clear that the law wasn't likely to survive the challenge. So Eckholm's also right that the decision isn't really a surprise -- even though it's music to our ears.

While this legislation would have significantly restricted the choices available to women seeking an abortion in ND, it is also true that the case before Judge Corwin didn't include any of the more recent legislation which would result in the closure of the only legal abortion facility in North Dakota. The more recent legislation outlaws any abortion after six weeks, any abortion resulting from the discovery that a fetus is malformed in any way and any "abortion" of a dead fetus while also imposing all the now-too-common facilities and hospital admitting privilege requirements that are popping up everywhere.

The clinic is challenging the new law as well and Corwin will preside over that case too, as it has now taken the form of an amendment to the earlier complaint that resulted in Monday's ruling. There's no question that the reasoning in the just released opinion will hold for the new law in spades. It will be fun to read that decision when it comes down, for sure.

I'm not interested in being an apologist for the NY Times but I agree that with more than 600 new pieces of abortion legislation out there, it would be pretty impossible for them to give space to every step of every case involving that legislation. This particular decision was something of a forgone conclusion. We love its language and rationale; we love that a North Dakota judge has spoken out so strongly about what's really going on here. in Judge Corwin's words:

Both the declared legislative purpose (to promote women's health) and the means selected to advance that purpose are contrived and pretextual. . . . The amendments do nothing to promote women's health. They serve only to create insurmountable barriers that effectively eliminate medical abortions as an available option.
We want this clear statement of what we know to be true to get all the attention in the world. But even in Fargo, it didn't hold a major headline. Everyone who cared knew it was coming, they just didn't know when.

What I love most about it is that the decision is based on a solid reading of North Dakota's Constitution -- particularly as involves the promise of the inalienable right to "liberty." Corwin sees a far stronger guarantee of and commitment to liberty in the State Constitution and constitutional case law than is in the Federal Constitution. He also cites North Dakotan's constitutional right to pursue "happiness" which, he says, is "a right nowhere mentioned in the Federal Constitution."

Want to read the opinion and gloat a little?  Here's a link, have a ball:

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