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March 16, 2023

CONTACT: Attorney General, Drew H. Wrigley 701.328.2210

“N.D.C.C. 12.1-31-12, commonly known as the “trigger law,” was bi-partisan legislation passed by the 2007 Legislature and signed into law. The law was only allowed to take effect after the United States Supreme Court handed down the Dobbs decision, which explicitly returned to the citizens of each state the authority to regulate abortion through the enactments of their elected representatives.

Since pre-statehood, the Dakota Territory and then North Dakota, have always recognized abortions may be utilized to protect the life of the mother. Our Territorial and state laws are clear on this topic and are explicitly confined to protecting the life of the mother. (See pages 10-11, paragraphs 23 and 24 of today’s Court opinion.) Legislatures could have expanded that narrow exception, but they have not done so. Nevertheless, the North Dakota Supreme Court today chooses a path of its very own, by holding there is now also an un-defined “health” exception to abortion regulation. Our Supreme Court did this without explicit support from our state Constitution, and without support from legislative enactments in our history of abortion regulation. In so doing, North Dakota’s Supreme Court appears to have taken on the role of a legislative body, a role our constitution does not afford them.

The Court today relies on two 1914 British medical journal articles to point out that it has long been known that abortion can be utilized for health reasons, in addition to protecting the life of the mother. But such an exception has never been recognized or codified in any of the North Dakota statutes regulating abortion before these 1914 articles or thereafter.

Today’s North Dakota Supreme Court decision does not bar the people of North Dakota from regulating abortion through the enactments by their elected representatives in our state legislature. Thankfully, our legislature has spent the past two months working on legislation that recrafts North Dakota’s abortion laws, and they will now have the opportunity to enact the will of North Dakotans, aware of the latest North Dakota Supreme Court pronouncement.”


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