ND Court Gives Moms Fundamental Right to Save Themselves from their Babies
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This forum was created by Dave Leach R-IA Bible Lover-musician-grandpa (talk) 21:07, 23 March 2023 (UTC) to help prolifers discuss the most effective evidence and legal arguments to include in legislation designed to force courts to address the overwhelming consensus of court-recognized fact finders that babies are people, which requires all states to outlaw abortion, according to the 14th Amendment, as Roe pointed, which Dobbs did not challenge. The original post of this article was condensed from "How States Can Outlaw Abortion in a Way that Survives Courts", by Dave Leach. Available as a paperback, Kindle, or as a free PDF.
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Contents
Introduction
The North Dakota Supreme Court ruled March 16, 2023 that mothers have a “fundamental right” to “abort” their babies to save their own lives, so therefore the state law outlawing all abortions needs to be put on hold until a clearer “life of the mother” exception can be added. Not added by the legislature, but added by the lower court, which the supreme court commissioned to work out the details.
The ruling makes zero mention of the fact that babies are people/humans. So what does that leave for a basis for babies' right to live?
Oh, wait, it doesn't talk about babies' right to live either. Corrected question: So what does that leave for a basis for moms' fundamental right to murder their babies?
Why, if they've been murdering babies from half a century ago to a century and a half ago and farther back in time, in other words if baby murder is "well rooted in our history", then it's a fundamental right. That is THE TEST for whether something we get to do is a "fundamental right".
Never mind that by that test, we have a Fundamental Right to discriminate against free blacks, keep women from voting, work children 20 hours a day in dangerous mines and factories, and sell homemade "medicine" loaded with cocaine in traveling minstrel shows. Owning slaves is likewise "well rooted in our history".
Fortunately the ND Supreme Court isn't planning to overturn ALL of ND's abortion ban PERMANENTLY. Yet. Just for another few years while courts mess with it. Their discussion focuses on just the ban on abortions when a mother will likely die without one. That distinction - abortions allowed only to "save the life of the mother" - is clear in ND's history which shows that from ND's beginning, abortions were legal to save the life of the mother, while all other abortions were outlawed. But of the Supreme Court's many mentions of the fundamental right to an abortion, that caveat is omitted, and the Court is returning the issue to the lower court to hammer out details like that.
A huge opportunity for the devil is in the details about a woman's "health". We remember how "Doe v. Bolton" expanded the word to cover anything from a toothache to toenail rot. The law put on hold by this ruling has an exception for the life of the mother, which this Court said is too legally complicated, but this ruling adds protection of "health" to what it deems as a "fundamental right", without defining "health", and then tells the lower court to go ahead and figure it out. Never mind that abortion generally is no "fundamental right" according to Dobbs, surely the lower court will drive through the supreme court's green light as fast as it pleases.
This would be a really great time for ND prolife lawmakers to introduce a bill that includes the consensus of court-recognized fact finders that babies are people - unborn babies are legally recognizable as fully human, which makes killing them legally recognizable as murder, which no state can legalize.
This won't necessarily protect babies whose existence threatens their mothers' lives, because as the Court observes, self defense laws give us the right even to kill other people who are trying to kill us. (Although the Concurrence that made this point overlooked the fact that self defense laws give us that right when others are deliberately trying to kill or seriously injure us, not when the very existence of someone else who simply wants our love is what is threatening us.)
In any case a "life of the mother" exception is legally, morally, and so far as I can tell Biblically complicated and may or may not be affected by the unanimous finding of fact that babies are "human persons", as Dobbs called them. But that evidence is desperately needed in court to save babies whose existence does NOT threaten their mothers.
Articles I read before I read the ruling itself:
Excerpts from the ruling
The legal issue
The court held (concluded, ruled): “there is a fundamental right to an abortion in the limited instances of life-saving and health-preserving circumstances, and the statute is not narrowly tailored to satisfy strict scrutiny.”
The ruling said that in the ND law it reviewed, “3. The following are affirmative defenses under this section: a. That the abortion was necessary in professional judgment and was intended to prevent the death of the pregnant female. b. That the abortion was to terminate a pregnancy that resulted from gross sexual imposition, sexual imposition, sexual abuse of a ward, or incest, as those offenses are defined in chapter 12.1-20.”
The ruling gave the background of the passage of the law several years ago: “ The effective date of the statute was tied to the issuance of a judgment by the United States Supreme Court restoring to the states the authority to regulate abortion.
“[¶7] On June 24, 2022, the United States Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization holding that the federal constitution does not protect a woman’s right to abortion. 142 S.Ct. 2228 (2022). The Supreme Court explicitly overruled Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), and expressly restored to the states the authority to regulate abortion. Dobbs, 142 S.Ct. at 2279. The Supreme Court reasoned “[i]t is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” Id. at 2243. And, ‘[t]he permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.’ Id. (page 4) (quoting Casey, 505 U.S. at 979 (Scalia, J., concurring in judgment in part and dissenting in part)).”
The ruling says the abortionists suing to block the ND law wanted more than just a “life of the mother exception”: “ RRWC’s complaint asserts the statute is unconstitutional and provides that RRWC is challenging the entirety of the statute, ”
The ruling says the baby killer plaintiffs want their constitution to “grow with the times”: “RRWC argues the North Dakota Constitution should be interpreted expansively because the North Dakota Constitution ‘is a living, breathing, vital instrument, adaptable to the needs of the day, and was so intended by the people when adopted.’ ”
Fundamental Right to ALL abortions?
Here is one of the times the ruling talks about the status of abortion as a “fundamental right” without the caveat that we are only talking about abortion when a pregnancy threatens mom’s life:
“[¶14] An initial determination of whether there is a fundamental right to an abortion under the State Constitution is necessary because, if such a right exists within our Constitution, the statute is subject to strict scrutiny by this Court. Hoff v. Berg, 1999 ND 115, ¶ 13, 595 N.W.2d 285. In contrast, if we conclude there is no fundamental right to abortion, the statute is subject to a review by this Court as to whether the legislature had a rational basis for enactment. Id.”
Notice that no 3rd option is mentioned, that there is a “fundamental right” only to save your OWN life, not take another’s – so that the right of both mother and infant to live are equal. No mention. Red flag.
“[¶28] Because we hold the North Dakota Constitution provides a fundamental right to receive an abortion to preserve a pregnant woman’s life or health, the constitutionality of N.D.C.C. § 12.1-31-12 must be analyzed under the strict scrutiny standard. A statute which restricts a fundamental right is subject to strict scrutiny standard of review which will only be justified if it furthers a compelling government interest and is narrowly tailored to serve that interest. Hoff, 1999 ND 115, ¶ 14.”
As one of the articles about this ruling observed, this verbiage is applied to the whole abortion ban, not just the part about a “life of the mother” exception. Yet elsewhere the ruling recounts North Dakota’s long history of support for that exception along with its long history of criminalizing all other abortions. What can we expect?
[¶30] Nevertheless, the State must still show N.D.C.C. § 12.1-31-12 is necessary to achieve the compelling state interests. While we note the legislature can regulate abortion, it must do so in a manner that is narrowly tailored to achieve the compelling interest. Hoff, 1999 ND 115, ¶ 13. On its face, N.D.C.C. § 12.1-31-12 unnecessarily restricts a woman’s access to an abortion to preserve her life or health. Section 12.1-31-12, N.D.C.C., criminalizes abortions performed even if the abortion is to preserve the life or health of the woman. The statute requires a physician who performs a life- preserving abortion to face prosecution of a class C felony, and if prosecuted prove by a preponderance of the evidence the abortion was necessary to save the life of the woman. This is not narrowly tailored to achieve the State’s interests in women’s health and protecting unborn human life.
State Supreme Courts that said abortion is a Fundamental Right in their state no matter what SCOTUS does
“[¶19] Several states have found their state constitutions provide for a fundamental right to abortion.”
Meaning, not state legislatures, but state supreme courts. My home state, Iowa, is one of those unfortunate states.
This reasoning is headed off the cliff. This is no longer just about abortion to save the life of the mother, but it is about all abortions. It literally says voters like you and me don’t have the final say, as Dobbs v. Jackson declared, but your vote only counts if you are a state Supreme Court judge. This page literally says that so far, their vote is against overruling the popular vote, but that will change if another judge or two changes their vote.
This makes it critical that “it’s a baby” evidence is placed before the Court so the judges will be forced to acknowledge that babies are people, which makes killing them murder, which no state can be allowed to keep legal, notwithstanding the special, rare-as-hen’s-teeth circumstance where two lives are in the balance.
Here is the Court’s list of other supreme courts which voted to make abortion a “fundamental right” in their state: “The Minnesota Supreme Court recognized a fundamental right to abortion under a combination of sections and rights in the Minnesota Constitution. Women of State of Minn. by Doe v. Gomez, 542 N.W.2d 17, 19 (Minn. 1995). The California Supreme Court found a fundamental right to abortion under California’s constitutional privacy clause. Am. Acad. of Pediatrics v. Lungren, 16 Cal.4th 307, 66 Cal.Rptr.2d 210, 940 P.2d 797, 819 (1997). The Alaska Supreme Court found a fundamental right to abortion within the right to privacy in the Alaska Constitution. Valley Hosp. Ass’n, Inc. v. Mat-Su Coal. for Choice, 948 P.2d 963, 969 (Alaska 1997). The Montana Supreme Court found a fundamental right to an abortion under Montana’s constitutional provision which explicitly guarantees its citizens the right of privacy. Armstrong v. State, 296 Mont. 361, 989 P.2d 364, 387 (1999). The New Jersey Supreme Court found a fundamental right to abortion within the “natural and unalienable rights” clause of the New Jersey Constitution. Planned Parenthood of Cent. N.J. v. Farmer, 165 N.J. 609, 762 A.2d 620, 629 (2000). The Kansas Supreme Court has concluded its state constitution provides abortion rights. Hodes & Nauser, MDs, P.A. v. Schmidt, 309 Kan. 610, 440 P.3d 461 (2019). Lastly, the Florida Supreme Court found a fundamental (page 10) right to abortion within Florida’s constitutional right to privacy. Gainesville Woman Care, LLC v. State, 210 So.3d 1243, 1252 (Fla. 2017).”
“[¶20] For the reasons set out below, we conclude RRWC has a substantial likelihood in establishing there is a fundamental right for a woman to obtain an abortion in instances where it is necessary to preserve her life or health.”
Here, at least, is where the ND court says it isn’t thinking of legalizing ALL abortions – just those needed to save mom’s lives – YET: “We need go no further here to determine whether there are fundamental rights broader in scope.”
Although it is encouraging that the Court finally refrains from considering “fundamental rights broader in scope”, its citation of other states which have done so, without criticizing them, shows that this court finds no legal reason not to change its mind later.
The fact is that all those cited state rulings were before Dobbs, when it was not a very significant distinction to say a state constitution supported a right which SCOTUS imposed on them anyway. I read Iowa’s Supreme Court decision that claimed that, and got the sense that it was as if to clarify the SCOTUS confusion from Hellerstedt, that tried in vain to patch up the confusion from Roe, which made abortion a “fundamental right”, downgraded by Casey to saying a restriction of abortion could not be an “undue burden”; Justice Thomas complained in a dissent that he could no longer tell the difference. I got the sense that neither could the Iowa court, so they just reverted back to “fundamental right”, a term they at least understood.
However, after Dobbs, the Iowa court no longer claimed the Iowa constitution still supported a “fundamental right” to abortion. In any case, the FACT that babies are people, which makes killing them murder, disposes of all this nonsense, and needs to quickly be brought to the attention of courts.
Well Rooted in our History
The lawyer defending the state law never says we shouldn’t murder babies because babies are people with a right to live. Instead, the reason we should not murder babies is that we haven’t been doing it all that long, in historical terms – only 50 years. “ The State contends the inherent rights recognized under sections 1 and 12, such as the fundamental right of parents to parent their child are distinguishable from abortion because abortion, unlike the right to parent one’s own child, does not have longstanding roots in American culture.”
The state law was the will of the citizens of North Dakota, passed by their elected representatives. Last year’s Dobbs v. Jackson ruling by the Supreme Court Of The United States (SCOTUS) said they were returning the decision about abortion’s legality to voters, meaning the votes of state citizens. The ND Court misunderstands which voters SCOTUS was talking about, because the ND Court thinks the only voters who get to decide abortion’s legality are judges on that Court: “(“[This Court] shall not declare a legislative enactment (page 9) unconstitutional unless at least four of the members of the court so decide.”). Additionally, this Court was unable to determine [because the votes were too even] whether there is a fundamental right to an abortion under the North Dakota Constitution.”
At least when judges vote, they don’t vote anonymously, and they explain their reasoning: “...finding this case should not be decided under the North Dakota Constitution); (Sandstrom, J., concurred, at ¶ 170 stating ‘[t]he Chief Justice persuasively argues there is no separate state constitutional right to an abortion.’).”
“[¶23] North Dakota’s history and traditions support this conclusion. North Dakota has a long history of permitting women to obtain abortions to preserve their life or health. Prior to statehood, North Dakota, then part of the Dakota Territory, criminalized abortions but explicitly provided an abortion was not a criminal act if the treatment was done to preserve the life of the woman: Every person who administers to any pregnant woman, or who prescribes for any such woman, or advises or procures any such (page 10) woman to take any medicine, drug or substance, or uses or employs any instrument, or other means whatever, with intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life, is punishable by imprisonment in the territorial prison not exceeding three years, or in a county jail not exceeding one year. Compiled Laws of the Territory of Dakota, Penal Code, § 6538 (1887).
“The laws of the Dakota Territory read identically and provided the ability to receive a life-preserving abortion in 1877 and 1883.
“[¶24] After statehood, North Dakota enacted a law which criminalized abortions but again explicitly provided an abortion would not be considered a criminal act if the treatment was done to preserve the life of the woman, which read:
“Every person who administers to any pregnant woman, or who prescribes for any such woman, or advises or procures any such woman to take any medicine, drug or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life, is punishable by imprisonment in the penitentiary not less than one and not exceeding three years, or in a county jail not exceeding one year.”
So the rationale for singling out a “fundamental right” to abortion at least to save a mother’s life is that it was historically a right going way back. But so was slavery, working children long hours in dangerous factories, and not letting women vote. History is a flawed source of understanding God-given unalienable rights. Facts are a better measure. The 14th Amendment doesn’t let states legalize the tyranny of any people group by any other people group.
The court quotes from a 1914 medical journal about an abortion to save the mother: “[¶25] Medical journals published shortly after statehood indicate it was common knowledge that an abortion could be performed to preserve the life or health of the woman. (page 12) There are not infrequently cases in which an abortion is imperative: the mentally unfit who might become deranged; the woman with a narrow brim or outlet because of which her life might be in danger and a Cesar[e]an section is the only relief; the woman who may bleed to death; the eclamptic; and those suffering from dangerous diseases. “This class, fortunately, is small in number; and abortion is performed only after a deliberate and careful consultation in which the dangers of the abortion are weighed from every side. Criminal Abortions, 34 JOURNAL-LANCET 81, 82 (1914). ”
“North Dakota recognized and approved abortions performed to preserve the life or health of the woman.”
“North Dakota has a longstanding history of allowing pregnant women to receive an abortion to preserve her life or health. ... Like the right to parent one’s own child, the right to receive a health or life-preserving abortion is deeply rooted in North Dakota’s history and culture.
“(Page 13) [¶27] Fundamental rights are those which are deeply rooted in history and tradition and are implicit in the concept of ordered liberty.
There it is again. Not! Slavery, and after that racial discrimination, are “deeply rooted in history and tradition” yet the 14th Amendment is unimpressed. History and tradition are irrelevant, no matter how invested judges are in their nonsense.
If there is a reason for the “life of the mother” exception, it is that while we admire people who give their lives for others, we can’t force them to by law. Also, where both mother and infant have an equal Right to Life, yet life forces a choice, the mother’s survival is usually more certain. I’m not declaring these factors must control our conclusion, but factors like these seem more relevant than what our ancestors did, who didn’t always do right.
I can’t think of a Biblical principle that quite addresses the issue.
“State v. Baxter, 2015 ND 107, ¶ 15, 863 N.W.2d 208. North Dakota’s history and traditions, as well as the plain language of its Constitution, establish that the right of a woman to receive an abortion to preserve her life or health was implicit in North Dakota’s concept of ordered liberty before, during, and at the time of statehood.”
Self Defense
“Tufte, Justice, concurring. ...to reach the result here, ‘life or health’ need not be understood more broadly than its application to the right of self-defense. Section 12.1-31-12, N.D.C.C., provides only an affirmative defense and not an exception for abortion intended to save a pregnant woman’s life. For that reason, there is a substantial probability it is unconstitutional in violation of the right of self-defense....
“Commonly, an individual exercises this right of self-defense by responding to a threat of imminent serious bodily injury or death with physical force....Where a pregnancy raises a similar threat of serious bodily injury or death, the pregnant woman has a fundamental right to preserve her life and health with the aid of a physician. Our recognition of this fundamental right to preserve one’s life does not depend on resolving the disputed point of pregnancy at which there are two lives that must be considered.”
In other words self defense is the right to protect ourselves from others whether the others threatening us are humans or not.
“We have long understood (page 20) that a woman has an inalienable right to employ deadly force against another person when necessary to protect herself against death or serious bodily injury.” The difference is that the right to use deadly force in self defense is when someone else is trying to kill you, deliberately and illegally.
The following tries to explain that the Court’s alarm was not that the abortion ban lacked any “life of the mother” exception at all, but that its process was too likely to trigger a messy criminal trial every time it was invoked: “Where an abortion is performed in situations that fall within the constitutional right of self-defense, section 12.1-31-12, N.D.C.C., unconstitutionally places the evidentiary burden on the defendant to raise not merely a reasonable doubt, but to prove an affirmative defense by a preponderance of the evidence.”
In other words, in normal criminal trials, the jury finds you innocent unless they believe you are guilty “beyond a reasonable doubt”, and it is up to the prosecutor to prove your guilt. But the way the abortion ban’s “life of the mother” exception is worded, it is up to you to prove you are innocent, and the jury can find you guilty even if they have serious doubts but they are slightly more inclined to think you are guilty than that you are innocent. Plus, the defendant is a doctor, whose medical decisions are made by a medically untrained jury.
The details will be hashed out by the lower court: “[¶45] We do not decide here what scope of health risks may give rise to abortion as medical self-defense. In the district court, the parties will have opportunity to present historical evidence illuminating the meaning of Article I, § 1, and to further develop their legal arguments. Before Roe v. Wade, 410 U.S. 113 (1973), restrictive abortion laws in North Dakota and nationwide uniformly recognized exceptions for abortion intended to save the woman’s life. See Eugene Volokh, Medical Self-Defense, Prohibited Experimental Therapies, and Payment for Organs, 120 Harv. L. Rev. 1813, 1825 (2007) (“[T]he abortion-as-self-defense right is largely uncontroversial, at least when threats to the mother’s life, and not just to her psychological health, are involved”
Health?
When did “health” creep in as an alternative justification to “life”? Deja vu, Doe v. Bolton, which so broadly defined “health” as anything you want it to mean.
“North Dakota has a long history of permitting women to obtain abortions to preserve their life or health.”
“N.D. Const. art. I, § 1. The North Dakota Constitution explicitly provides all citizens of North Dakota the right of enjoying and defending life and pursuing and obtaining safety. These rights implicitly include the right to obtain an abortion to preserve the woman’s life or health.
“[¶20] For the reasons set out below, we conclude RRWC has a substantial likelihood in establishing there is a fundamental right for a woman to obtain an abortion in instances where it is necessary to preserve her life or health.”
“North Dakota has a longstanding history of allowing pregnant women to receive an abortion to preserve her life or health.”
“[¶29] The State argues it has a compelling interest in protecting women’s health and protecting unborn human life. RRWC does not challenge this assertion.”
“[¶31] Moreover, N.D.C.C. § 12.1-31-12 provides an affirmative defense only if in the professional judgment of the physician the abortion was necessary to prevent the death of the female. A pregnant woman is unable to obtain an abortion in order to preserve her health, regardless of the potential health consequences. Preserving the life or health of the woman necessarily includes providing an abortion when necessary to prevent severe, life altering damage. The United States District of Idaho explained the grave risks to health a pregnant woman faces:”
While all human activity carries risk, these risks are generally not life threatening. However, I see the point of the “chaotic” context of such a decision.
“Pregnant women in Idaho routinely arrive at emergency rooms experiencing severe complications. The patient might be spiking a fever, experiencing uterine cramping and chills, contractions, shortness of breath, or significant vaginal bleeding. The ER physician may diagnose her with, among other possibilities, traumatic placental abruption, preeclampsia, or a preterm premature rupture of the membranes. In those situations, the physician may be called upon to make complex, difficult decisions in a fast-moving, chaotic environment. She may conclude that the only way to prevent serious harm to the patient or save her life is to terminate the pregnancy—a devastating result for the doctor and the patient.. . . . (page 15) Yet if the physician does not perform the abortion, the pregnant patient faces grave risks to her health—such as severe sepsis requiring limb amputation, uncontrollable uterine hemorrhage requiring hysterectomy, kidney failure requiring lifelong dialysis, hypoxic brain injury, or even death. And this woman, if she lives, potentially may have to live the remainder of her life with significant disabilities and chronic medical conditions as a result of her pregnancy complication. All because Idaho law prohibited the physician from performing the abortion. Granted, the Idaho statute offers the physician the cold comfort of a narrow affirmative defense to avoid conviction. But only if she convinces a jury that, in her good faith medical judgment, performing the abortion was “necessary to prevent the death of the pregnant woman” can she possibly avoid conviction. Even then, there is no certainty a jury will acquit. And the physician cannot enjoy the benefit of this affirmative defense if she performed the abortion merely to prevent serious harm to the patient, rather than to save her life.
“A law that on its face criminalizes a life-preserving abortion, infringes unnecessarily on a woman’s fundamental right to seek an abortion to preserve her life or health, at least in part, cannot withstand strict scrutiny. (Page 15)
“N.D.C.C. § 12.1-31-12(1)(a). This definition is not narrowly tailored to women’s health. Notably, the definition does not include abortions for ectopic pregnancies, which is a pregnancy where the fertilized egg does not implant appropriately within the uterus and is potentially lethal to the mother. 2 Am. Law Med. Malp. § 13:6 (2022). Therefore, under the statutory construction of N.D.C.C. § 12.1-31-12, an abortion to treat an ectopic pregnancy would be a criminal act. As noted above, criminalizing life-preserving abortions is not necessary to promote the State’s interests in women’s health and protecting unborn human life.”
Of course an ectopic pregnancy is the rare situation where the baby will soon die on its own even without an abortion.
“Therefore, N.D.C.C. § 12.1-31-12 is unconstitutional, and RRWC has a substantial likelihood of succeeding on the merits at least with respect to life or health preserving abortions.”