North Dakota: A National Leader in Choosing Life

North Dakota

A National Leader in Choosing Life

With the recent Supreme Court decision in Dobbs v. Jackson, many states are working to enact pro-life policies. Many of them are turning to North Dakota, which has been working to create a pro-life culture in the state for over 25 years. The Dobbs decision is paving the way for an existing trigger law to go into effect, and the state’s pro-life movement also seeks to expand existing policies that support women and children. Here’s a look back at the incredible success we’ve experienced in the last 25 years.

Little by Little, Inch by Inch

In the 1990s, lawsuits and federal policy made banning abortion difficult. So the movement focused on abortion alternatives. North Dakota was one of the first to create a state-funded abortion alternatives program. It provides support for pregnancy centers, adoption centers, and maternity homes. The program reimburses centers for their work on a fee-for-services basis. Setting it up this way allows for a diversity of services and a broader array than a grant program would provide. Overall, this helps give women the resources they needed to consider other options. And every time the program expands or improves, the percentage of pregnancies ending in abortion in the state goes down.

This program has been and will continue to be an area of focus for the pro-life movement. But legislators still wanted to do more to limit abortions. Though this was challenging, they were able to get some significant legislation passed.

On to the Legislature

One of the first such bills to become law was an ultrasound bill. This bill required that an abortion provider must offer each woman seeking an abortion an active ultrasound consistent with standard medical practice, and mandated a 24-hour waiting period between viewing the ultrasound and receiving an abortion. The law requires that the ultrasound accurately show the baby’s arms, legs, organs, and beating heart with an audible fetal heart tone.

This bill passed easily and was signed into law in 2009. However, a lawsuit quickly challenged it. The lawsuit claimed that this requirement was too onerous for abortion clinics. Former Representative Bette Grande, who sponsored the bill, saw that the clinics’ argument was flawed. She pointed out that the new law required the ultrasound be provided to a quality consistent with standard medical practice. If the abortion clinic, a purported medical facility, couldn’t provide such an ultrasound and allow the mother to hear her child’s heartbeat, it would have to acknowledge that it failed to provide standard quality services.

The law requires a modern ultrasound with fetal heart tone to meet the requirements of informed consent, but the clinic could not and would not provide that service.

This lose/lose situation for the abortion clinic was made

complete by the pro-life movement’s willingness to provide the services at issue. The pro-life clinics in the state had the necessary ultrasound machines, and they were willing to provide ultrasounds for free. All the abortion clinics had to do was send their patients over. With this option available the undue burden argument fell flat, and the law remains in effect.

Building on Success

Bolstered by this victory, the legislature rewrote and corrected language in another piece of legislation, the Abortion Control Act. This act covered all the laws related to abortion and put the laws in a more uniform state. It included a description of an unborn child: the offspring of a human being from conception until birth.

The bill also included control over medical abortions. It required that medical abortions be done in compliance with FDA standards. Medications could not be used off-label to trigger an abortion. And women had to see a doctor in person to get a drug to trigger abortion.

This law passed in 2011. The Red River Women’s Clinic challenged it, and it eventually went to the North Dakota Supreme Court. There, the court upheld the law, though this process delayed its going into effect until 2014.

Gaining Momentum

The year 2013 proved to be a big year for the pro-life movement in North Dakota. First up was the prenatal nondiscrimination bill. This banned abortion for sex selection and for any genetic abnormalities, including — but by no means limited to — Down syndrome.

Although an abortion clinic initially challenged the law, it later withdrew its complaint. Since the law was never challenged, North Dakota became the first, and until this year the only state in the nation to ban abortions for reasons of sex and genetic abnormalities.

Next was the heartbeat bill. North Dakota was the first state in the country to have a full heartbeat bill signed. This new law banned abortion after a heartbeat was detectable via ultrasound, with very limited exceptions. This law went to federal court. Unfortunately, the US district court judge ruled that the law be blocked. The attorney general took it to the appellate court, which gave the same response.

The appellate court argued that North Dakota’s heartbeat law was strong, and that it had the language necessary to go to the Supreme Court. The attorney general took it to the Supreme Court, which declined to take it up. However, the Court planned to consider a similar bill from Arkansas. Unfortunately, the timing coincided with Justice Scalia’s passing, which delayed the process.

As the appellate court had noted, the language in the law was very strong. So strong, in fact, that it set a model for state after state to set up their own heartbeat bills. While some of these bills differ from North Dakota’s in their provisions for rape and incest or various markers by week, former Representative

Grande finds the progress encouraging. She notes that over the years since Roe v. Wade was established, many people have failed to recognize the reality of life in the womb. Some of these pro-life steps may be small, but they are important for changing the narrative and changing hearts, minds, and souls.

Other Help for New Mothers

North Dakota also has provisions in place to help mothers who do choose life, including safe haven options. For up to a year after giving birth, a mom who finds herself in crisis can bring her baby to a fire station, police station, or hospital. The baby will be cared for with no questions asked and nothing required of the mother. The mother can walk away at any point during that first year if she finds parenting too overwhelming. While this isn’t an ideal solution, it still gives the baby a chance at life.

Of course, better support for mothers so they don’t find themselves in such a situation is far preferable. That’s where the pro-life movement has turned its attention in recent years. For example, the abortion alternatives program has done a lot of good work. But it’s currently underfunded, and the money that supports it can’t be used for medical services. So, the program can’t cover things like ultrasounds and pregnancy tests. Many members of the pro-life movement would like to see this change. They’d also like to expand its coverage to at least a year after birth.

There are a variety of ways to expand resources and support for women, children, and families. These range from tax deductions during pregnancy to expanded childcare to sales tax exemptions for diapers.

Creating a Culture of Life

Christopher Dodson, the executive director and general counsel of the North Dakota Catholic Conference, has been part of the pro-life movement for decades. He notes that with all of these options, some controversial, it’s important that the movement keep its eyes on the prize. The true goal, he says, is “not just overturning Roe, but making abortion unthinkable and building a culture of life in the state.” Many of these options can help further that goal.

Another goal for pro-life legislators is to move forward with applying the trigger ban and having the heartbeat bill reinstated. These bills then need to be integrated and clarified to smooth out any discrepancies between the two. Senator Janne Myrdal currently leads the North Dakota Legislature’s pro-life caucus. She has worked hard to protect and strengthen existing legislation. Now, she believes expanding the alternatives to abortion program is essential. She hopes that North Dakota will be able to “create a culture where abortion would be unthinkable because we undergird women and newborns and unborn children with the services they need.”

It’s a lofty but essential goal. It will require both strong legislation and committed citizens. Fortunately, North Dakota has both. And it’s creating an effective roadmap to encourage other states to join them on the journey toward life.