PER CURIAM.
[¶ 1] Article VI, § 4 of the North Dakota Constitution requires the agreement of at least four members of this Court to declare a statute unconstitutional. Justice Kapsner and Surrogate Judge Maring have concluded that H.B. 1297 is unconstitutional under the North Dakota Constitution, Chief Justice VandeWalle and Justice Sandstrom have concluded that H.B. 1297 is constitutional under the state constitution, and Justice Crothers has concluded that the state constitutional issue need not be decided. Justices Kapsner and Crothers and Surrogate Judge Maring have concluded that H.B. 1297 is unconstitutional under the federal constitution, Chief Justice VandeWalle has concluded that H.B. 1297 is constitutional under the federal constitution, and Justice Sandstrom has concluded the federal constitutional issue is not properly before this Court. Justice Kapsner and Surrogate Judge Maring have concluded that H.B. 1297 has been declared unconstitutional under the federal constitution by a sufficient majority. Chief Justice VandeWalle and Justices Sandstrom and Crothers, however, have concluded that H.B. 1297 has not been declared unconstitutional under the federal constitution by a sufficient majority. The
[¶ 2] GERALD W. VANDEWALLE, C.J., MARY MUEHLEN MARING, S.J., CAROL RONNING KAPSNER, DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ., concur.
[¶ 3] The Honorable LISA FAIR McEVERS was not a member of the Court when this case was heard and did not participate in this decision. Surrogate Judge MARY MUEHLEN MARING, sitting.
VANDEWALLE, Chief Justice.
[¶ 4] Terry Dwelle, M.D., in his official capacity as chief administrator of the North Dakota Department of Health, appealed from a judgment permanently enjoining the State from enforcing 2011 amendments to the North Dakota Abortion Control Act, N.D.C.C. ch. 14-02.1, regulating medication abortions ("H.B. 1297") and from an order preliminarily enjoining the State from enforcing 2013 amendments to the Abortion Control Act requiring physicians performing abortion procedures to have admitting and staffing privileges at a hospital within thirty miles of the abortion facility ("S.B. 2305"). The parties have stipulated to dismiss the claim to enjoin enforcement of S.B. 2305, and we dismiss the State's appeal from the order preliminarily enjoining enforcement of S.B. 2305. The State argues the district court erred in construing H.B. 1297 as a ban on all medication abortions and erred in determining a fundamental right to an abortion exists under the North Dakota Constitution and in applying strict scrutiny to the challenged provisions of H.B. 1297. I conclude the district court erred in determining a fundamental right to an abortion exists under the North Dakota Constitution and in applying strict scrutiny to the challenged provisions in H.B. 1297. I further conclude the court erred in construing the challenged provisions in H.B. 1297 as a ban on all medication abortions, and as construed, I conclude the challenged provisions do not constitute an undue burden on the right to an abortion under federal precedent. I would reverse the judgment permanently enjoining the State from enforcing H.B. 1297.
[¶ 5] In July 2011, MKB Management Corporation, doing business as the Red River Women's Clinic, and Kathryn L. Eggleston, a physician licensed in North Dakota and the medical director at the Clinic, sued Dwelle and Birch Burdick, in his official capacity as State's Attorney for Cass County, for a declaration that certain provisions in H.B. 1297 for medication abortions violate the North Dakota Constitution. The plaintiffs alleged the Clinic is the only abortion provider in North Dakota and serves women residing in North Dakota, as well as women who travel to the Clinic from Minnesota and South Dakota. The plaintiffs alleged the Clinic offers both surgical and medication abortions and performed a total of about 1,300 abortions in 2010. According to Eggleston, in 2007 the Clinic began offering medication abortions using two prescription drugs, mifepristone and misoprostol, and about 20 percent of the Clinic's patients choose a medication abortion and about 80 percent of the patients choose a surgical abortion. According to Tammi Kromenaker, a director at the Clinic, the Clinic performs surgical abortions through 16 weeks of a woman's pregnancy and performs medication abortions up to 9 weeks or 63 days after a woman's last
[¶ 6] To understand the issues raised in the plaintiffs' lawsuit and this appeal, I briefly describe the differences between the "final-printed-label" protocol and the "off-label" or "evidence-based" protocol for medication abortions:
Planned Parenthood Sw. Ohio Region v. DeWine, 696 F.3d 490, 494-96 (6th Cir. 2012) (citations and footnotes omitted). See also Cline v. Oklahoma Coal. for Reprod. Justice, 2013 OK 93, ¶¶ 9-13, 313 P.3d 253 (describing FDA final-printed-label and off-label protocols for medication abortions).
[¶ 7] The challenged provisions for medication abortions in H.B. 1297 were scheduled to take effect on August 1, 2011, and generally regulate the use of an "abortion-inducing drug" for the purpose of in-during
[¶ 8] Under those definitions, the challenged provisions in H.B. 1297 generally: (1) prohibit a physician from knowingly giving, selling, dispensing, administering, or otherwise providing or prescribing any abortion-inducing drug to a pregnant woman for the purpose of inducing an abortion unless the person providing or prescribing the abortion-inducing drug is a physician and the provision or prescription satisfies the protocol tested and authorized by the federal food and drug administration and as outlined in the label for the abortion-inducing drug; (2) require every pregnant woman given any abortion-inducing drug to be provided with a copy of the drug's label; (3) require a physician prescribing, dispensing, or administering an abortion-inducing drug to enter a signed contract with another physician, who agrees to handle emergencies associated with the use or ingestion of the abortion-inducing drug and has active admitting privileges and gynecological and surgical privileges at a hospital designated to handle any emergencies associated with the use or in-gestion of the abortion-inducing drug; (4) require the pregnant woman be provided the name and telephone number of the physician who will be handling emergencies and the hospital at which any emergencies will be handled; (5) require the proscribing or dispensing physician to produce the signed contract on demand by the patient, the health department, or a criminal justice agency; and (6) require an abortion-inducing drug used for the purpose of inducing an abortion to be administered by or in the same room and in the presence of the prescribing, dispensing, or providing physician. 2011 N.D. Sess. Laws ch. 109, § 6.
[¶ 9] The plaintiffs alleged H.B. 1297 violates the Clinic's patients' rights under N.D. Const. art. I, §§ 1 and 12 by: (1) banning all medication abortions; (2) banning medication abortions for women between 50 and 63 days of pregnancy; (3) banning safer and more effective "off-label" medication abortions; (4) banning medication abortions when a surgical abortion would threaten a woman's health; and (5) requiring women receiving a medication abortion to be provided with misleading information about emergency treatment.
[¶ 10] In July 2011, the district court restrained enforcement of H.B. 1297 pending resolution of the plaintiffs' motion for a preliminary restraining order. In February 2012, the court preliminarily enjoined enforcement of H.B. 1297 during the lawsuit, concluding the plaintiffs were likely to prevail on their state constitutional challenge. The court described the existing undue burden standard for reviewing abortion legislation under the due process clause of the Fourteenth Amendment of the United States Constitution from the plurality opinion in Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 876-78, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). In
[¶ 11] After an April 2012 trial on the merits, the district court permanently enjoined the State from enforcing the challenged provisions in H.B. 1297. The court reiterated its earlier determination that a woman's right to an abortion is a fundamental liberty right under N.D. Const. art. I, §§ 1 and 12 and restrictions on that right were subject to strict scrutiny, which required the challenged legislation be narrowly drawn and necessary to address a compelling need. The court again construed the amendments in H.B. 1297 to ban all medication abortions after concluding misoprostol is an abortion-inducing drug and the final-printed-label protocol for misoprostol is not separately approved by the FDA for medication abortions. The court concluded the ban on all medication abortions was unconstitutional under the state constitution and was also an undue burden on a woman's right to an abortion before viability under the federal constitution. The court further ruled the state and federal constitutional provisions were violated by: (1) the requirement for dispensing or administering misoprostol in the same room and physical presence of the prescribing physician; (2) the 14-day difference in gestational limits for performing medication abortions under the FDA final-printed-label protocol and the off-label protocol; (3) the requirement for an exclusive emergency services contract; and (4) the lack of exceptions for a woman's health, for victims of rape and abuse, and for physical abnormalities. The court permanently enjoined enforcement of the challenged provisions in H.B. 1297.
[¶ 12] Meanwhile, in June 2013, the district court granted the plaintiffs' motion to supplement its complaint to add Kromenaker as a plaintiff and to raise a state constitutional challenge to 2013 legislation
[¶ 13] While the appeal was pending, the parties stipulated to dismiss the plaintiffs' claim to enjoin enforcement of the 2013 amendments in S.B. 2305, and the district court dismissed that claim and vacated the order preliminarily enjoining enforcement of S.B. 2305. We therefore dismiss the State's appeal from the order preliminarily enjoining enforcement of S.B. 2305 and consider the parties' arguments about the judgment permanently enjoining enforcement of the challenged provisions in H.B. 1297.
[¶ 14] The State argues the plaintiffs failed to establish the challenged provisions in H.B. 1297 violate N.D. Const. art. I, §§ 1 and 12. The State contends the district court erred in determining a fundamental right to abortion exists under the North Dakota Constitution and in applying strict scrutiny to H.B. 1297. The State also asserts the court erred in interpreting the language in H.B. 1297 to ban all medication abortions.
[¶ 15] Before addressing the state constitutional arguments, I describe the current contours of federal law involving abortion. In 1973, in Roe v. Wade, 410 U.S. 113, 117-18, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the United States Supreme Court considered a federal constitutional challenge to Texas statutes prohibiting abortions except for the purpose of saving the mother's life. The Court surveyed the history of abortion and what the Court described as the "relatively recent vintage" of statutory proscriptions of abortion. Id. at 129-52, 93 S.Ct. 705. The Court concluded an individual's right to privacy under the Fourteenth Amendment's concept of personal liberty was broad enough to cover the abortion decision. Id. at 152-55, 93 S.Ct. 705. The Court concluded, however, an individual's right to an abortion was not absolute and was subject to some limitations, and at some point, the state's interest in the protection of a woman's health, medical standards, and the potential for prenatal life became dominant. Id. The Court explained "[w]here certain `fundamental rights' are involved, ... regulation[s] limiting these rights may be justified only by a `compelling state interest,' and that legislative enactments [regulating those fundamental rights] must be narrowly drawn to express only the legitimate state interests at stake." Id. at 155, 93 S.Ct. 705 (citations omitted). The Court balanced the respective interests and announced a trimester framework for evaluating abortion regulations:
Roe, 410 U.S. at 164-66, 93 S.Ct. 705.
[¶ 16] In 1992, in Casey, 505 U.S. at 844, 112 S.Ct. 2791; the Supreme Court considered a federal constitutional challenge to several provisions of the Pennsylvania Abortion Control Act of 1982, including language: (1) defining a "medical emergency" for purposes of certain exemptions from the requirements of the Act; (2) requiring informed consent and a twenty-four hour waiting period for a woman seeking an abortion; (3) requiring informed parental consent with a judicial bypass option for a minor seeking an abortion; and (4) requiring a married woman's signed statement that she had notified her husband of her intended abortion. In Casey, at 846, 112 S.Ct. 2791, a plurality of the Supreme Court reaffirmed the "essential holding" in Roe that the right to terminate a pregnancy before viability is a liberty interest under the Fourteenth Amendment's due process clause:
[¶ 17] In Casey, 505 U.S. at 852, 871-72, 112 S.Ct. 2791, the plurality decision recognized "[a]bortion is a unique act ... fraught with consequences for others" for purposes of constitutional analysis and discussed the practical difficulty in applying strict scrutiny to abortion regulations because of a state's important and legitimate interests in a woman's health and in potential life. The plurality opinion abandoned
Casey, at 877-79, 112 S.Ct. 2791 (citations omitted).
[¶ 18] In Casey, 505 U.S. at 879-901, 112 S.Ct. 2791, the plurality decision considered whether certain regulations in Pennsylvania's Abortion Control Act constituted an undue burden on a woman's right to an abortion before viability. The decision construed the exemptions from the Act's regulations under the definition of a "medical emergency" in a manner to avoid a constitutional infirmity so as to not constitute an undue burden on a woman's right to an abortion before viability. Id. at 879-80, 112 S.Ct. 2791. The decision explained the requirement for informed consent and a twenty-four hour waiting period for a woman seeking an abortion was a reasonable measure to ensure an informed choice. Id. at 881-83, 112 S.Ct. 2791. The decision determined the requirement for informed consent and a waiting period did not constitute an undue burden even though it may require at least two visits to a physician and increase the cost of an abortion. Id. at 883-87, 112 S.Ct. 2791. The decision determined the requirement that, except in a medical emergency, a married woman obtain consent from her spouse constituted an undue burden because the spousal notification requirement was a substantial obstacle for a woman for whom the restriction was relevant. Id. at 887-98, 112 S.Ct. 2791. The decision ruled the requirement that, except for a medical emergency, a minor child obtain parental consent for an abortion, with a judicial bypass option, did not constitute an undue burden. Id. at 899-900, 112 S.Ct. 2791. Finally, the decision said the requirement for record keeping and reporting by an abortion facility, except reporting relating to spousal notification, did not constitute an undue burden on a woman's right to an abortion before viability. Id. at 900-01, 112 S.Ct. 2791.
[¶ 19] In Gonzales v. Carhart, 550 U.S. 124, 132-33, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007), the Supreme Court considered the validity of the Partial-Birth Abortion Act of 2003, 18 U.S.C. § 1531, a federal statute regulating certain partial-birth abortion procedures in the second trimester of a pregnancy and upheld the Act against a facial attack. The Court described "assume[d]" principles from Casey for purposes of its decision:
Gonzales, at 146, 127 S.Ct. 1610.
[¶ 20] In Gonzales, the Court construed the Partial-Birth Abortion Act and concluded it prohibited intentionally performing one type of abortion procedure described as an "intact" dilation and evacuation procedure, but did not prohibit a standard dilation and evacuation procedure in which the fetus was removed in parts. 550 U.S. at 150-67, 127 S.Ct. 1610. The Court described the congressional history supporting the regulation and held the regulation on its face did not have the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion before viability. Id. at 141-43, 156-67, 127 S.Ct. 1610. The Court explained the purpose of regulating the procedure for abortions by intact dilation and evacuation expressed respect for the legitimate governmental interests in the dignity of human life and recognition of the State's interest in regulating the medical profession and potential life. Id. at 158, 127 S.Ct. 1610. The Court said "[w]here it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in the furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn." Id. at 158, 127 S.Ct. 1610. The Court also explained the effect of the legislation did not impose an undue burden on a woman's abortion right for purposes of a facial attack on the legislation because there was a documented medical disagreement whether the prohibition of this specific procedure imposed significant health risks on women. Id. at 161-67, 127 S.Ct. 1610. In Gonzales, at 166-67, 127 S.Ct. 1610, the Court further explained its determination the Act did not require a health exception and did not impose an undue burden on a woman's right to an abortion was supported by the existence of alternatives to the prohibited procedure:
In Gonzales, at 167-68, 127 S.Ct. 1610, the Court also determined the facial attack should not have been entertained in the first instance because as-applied challenges provided the proper manner to protect the health of a woman and assess medical risks and the regulations were not unconstitutional even in a large fraction of relevant cases.
[¶ 21] Under Supreme Court precedent, a state may not prohibit a woman from making the ultimate decision to terminate a pregnancy before viability, and the undue burden standard governs the analysis of abortion regulations under federal law. See Gonzales, 550 U.S. at 146, 127 S.Ct. 1610; Casey, 505 U.S. at 877-79, 112 S.Ct. 2791. As Gonzales, at 158, 127 S.Ct. 1610, explains, where a state has a rational basis to act and does not impose an undue burden on a woman's right to an abortion before viability, a state may use its regulatory powers to bar certain procedures and substitute others in the furtherance
[¶ 22] Against the background of federal precedent describing a woman's fundamental right to an abortion before viability under the federal constitution, I consider the parties' arguments under N.D. Const. art. I, §§ 1 and 12, which provide:
[¶ 23] The State argues the district court erred in determining a fundamental right to abortion exists under those state constitutional provisions and in applying strict scrutiny to the challenged provisions in H.B. 1297. The State contends those constitutional provisions must be interpreted to ascertain the framers' intent, which the State claims is evidenced by statutes continuously prohibiting abortions in the Dakota Territory and in North Dakota through the United States Supreme Court's decision in Roe in 1973.
[¶ 24] The plaintiffs respond the district court correctly decided a woman's right to terminate a pregnancy is an inalienable and fundamental liberty right protected by the state constitution, which protects individual liberties to the same or greater extent than the federal constitution and must be interpreted in light of changed circumstances.
[¶ 25] In interpreting constitutional provisions, we apply general principles of statutory construction. Thompson v. Jaeger, 2010 ND 174, ¶ 7, 788 N.W.2d 586. Our overriding objective is to give effect to the intent and purpose of the people adopting the constitutional provision. City of Bismarck v. Fettig, 1999 ND 193, ¶ 8, 601 N.W.2d 247. The intent and purpose of constitutional provisions are to be determined, if possible, from the language itself. Thompson, at ¶ 7. In construing constitutional provisions, we ascribe to the words the meaning the framers understood the provisions to have when adopted. Kadrmas v. Dickinson Pub. Schs., 402 N.W.2d 897, 899 (N.D.1987). We may consider contemporary legal practices and laws in effect when the people adopted the constitutional provisions. See State v. Orr, 375 N.W.2d 171, 177-78 (N.D.1985) (interpreting right to counsel provision of state constitution in view of statutes in effect when constitution adopted); City of Bismarck v. Altevogt, 353 N.W.2d 760, 764-65 (N.D. 1984) (interpreting right to jury trial under state constitution in view of territorial statutes defining right to jury trial).
[¶ 26] This Court has recognized the due process language in N.D. Const. art. I, § 12 "protects and insures the use and enjoinment of the rights declared" by N.D. Const. art. I, § 1. Cromwell, 72 N.D. at
[¶ 27] In Cromwell, 72 N.D. at 573-74, 9 N.W.2d at 918-19, this Court broadly described the "inherent rights" protected by the language in N.D. Const. art. I, §§ 1 and 12, in the context of addressing a challenge to statutes prohibiting the practice of professional photography without a license. This Court said the language in N.D. Const. art. I, § 1, embodies the essence of "self-evident truths," and the term "liberty" includes "in general, the opportunity to do those things which are ordinarily done by free men." Id. at 573, 9 N.W.2d at 918. This Court explained the pursuit of happiness was not capable of specific definitions or limitation but was the aggregate of many rights included in the guaranty of liberty. Id. at 574, 9 N.W.2d at 918. This Court recognized, however, a state's police power authorized a state to impose restrictions on private rights as practically necessary for the general public welfare and health and comfort of all. Id. at 575-78, 9 N.W.2d at 919-21. This Court held the business of photography was not of such a character as to warrant the restraint imposed by licensing statutes and the regulations were not reasonably required and appropriate for the protection of the public. Id. at 578-81, 9 N.W.2d at 921-22. This Court held the statute requiring professional photographers to be licensed was unconstitutional under the language of N.D. Const. art. I, §§ 1 and 12. Cromwell, at 581, 9 N.W.2d at 922.
[¶ 28] In Johnson, 263 N.W.2d at 128-29 (citing David L. Chambers, Alternatives
[¶ 29] In Hoff, 1999 ND 115, ¶¶ 8-18, 595 N.W.2d 285, in the context of addressing state and federal constitutional challenges to a grandparent visitation statute, this Court generally outlined the levels of scrutiny applicable to liberty claims under the due process clause:
Hoff, at ¶ 13 (citations omitted).
[¶ 30] In Hoff, 1999 ND 115, ¶ 18, 595 N.W.2d 285, we recognized parents have a fundamental right to parent children and to decide when, under what conditions, and with whom their children may associate. We concluded the version of the grandparent visitation statute at issue in that case failed to withstand strict scrutiny and was unconstitutional under the due process clause of the state and federal constitutions. Id. at ¶ 18.
[¶ 31] A common thread in this Court's precedent construing the language in N.D. Const. art. I, §§ 1 and 12 in the context of individual liberty and the state's countervailing interests recognizes application of the state's police power, which is not always compatible with applying strict scrutiny to challenged regulations. The United States Supreme Court recognized as much in Casey, 505 U.S. at 852, 871-72,
[¶ 32] I acknowledge that some state courts have recognized a woman's fundamental state constitutional liberty or privacy right to terminate a pregnancy, which is subject to judicial review under strict scrutiny. See Valley Hosp. Assoc., Inc. v. Mat-Su Coal. for Choice, 948 P.2d 963, 966-69 (Alaska 1997); People v. Belous, 71 Cal.2d 954, 80 Cal.Rptr. 354, 458 P.2d 194, 199-200 (1969); North Florida Women's Health & Counseling Servs., Inc. v. State, 866 So.2d 612, 634-35 (Fla.2003); Women of Minnesota v. Gomez, 542 N.W.2d 17, 27-31 (Minn.1995); Armstrong v. State, 1999 MT 261, ¶ 41, 296 Mont. 361, 989 P.2d 364; Planned Parenthood of Middle Tennessee v. Sundquist, 38 S.W.3d 1, 14-17 (Tenn.2000).
[¶ 33] Because of the difficulty in applying strict scrutiny to the competing state and individual interests involved with abortion regulations, however, some state courts have recognized their state constitutions do not guarantee a right to abortion separate and distinct from the federal constitution. See Mahaffey v. Attorney General, 222 Mich.App. 325, 564 N.W.2d 104, 111 (1997) (holding Michigan Constitution does not guarantee right to abortion separate and distinct from federal right); Preterm Cleveland v. Voinovich, 89 Ohio App.3d 684, 627 N.E.2d 570, 577 (1993) (stating nothing justified utilizing compelling state interest test for analyzing abortion regulation under Ohio Constitution and applying undue burden standard under federal law).
[¶ 34] In Mahaffey, 564 N.W.2d at 109-10, the Michigan Court of Appeals said that when the relevant state constitutional provisions for a right to privacy were adopted, abortion was a criminal offense in Michigan, and it was presumed the drafters of the Michigan Constitution were aware of the statutory prohibition. The court explained the state constitution and the debates of the constitutional convention were silent about abortion, evidencing no intent to alter the existing law, and the court concluded the people adopting the constitution did not intend the right to privacy to include a state constitutional right to abortion. Id. at 110-14. The court emphasized its decision had no effect on the right of Michigan women to obtain an abortion under the federal constitution and held that the Michigan Constitution did not guarantee a right to abortion separate and distinct from the federal right. Id. at 111. In addressing the constitutionality of an informed consent statute under the Michigan Constitution, the court explained the stated purposes of the statute were legitimate legislative objectives and the law was reasonably related to the achievement of those objectives. Id. at 113-14.
[¶ 35] In Preterm Cleveland, 627 N.E.2d at 575-76, the Ohio Court of Appeals discussed Roe and Casey and said a right to bear a child was one of the liberties guaranteed by the Ohio Constitution, but was not absolute or unqualified and must be balanced against important state interests in regulation. In considering those interests, the court explained there was "nothing demonstrated to justify utilization of a compelling-state-interest test" for abortion regulations and applied the federal undue burden standard to Ohio abortion regulations. Id. at 577. The court found no basis for concluding the Ohio Constitution imposed greater restrictions upon states than the federal constitution and held the trial court erred in
[¶ 36] Before the United States Supreme Court decided Roe in 1973, North Dakota had a long history of prohibiting abortions except to preserve a woman's life. See Penal Code, Dakota Territory §§ 337, 338 (1877); Compiled Laws of the Territory of Dakota §§ 6538, 6539 (1887); N.D.R.C. §§ 7177, 7178 (1895); N.D.R.C. §§ 8912, 8913 (1905); N.D. Compiled Laws §§ 9604, 9605 (1913); N.D.R.C. ch. 12-25 (1943); N.D.C.C. ch. 12-25 (1960). After Roe was decided, the 1973 legislature enacted provisions continuing to prohibit abortions as part of a comprehensive enactment of the criminal code in N.D.C.C. tit. 12.1. See 1973 N.D. Sess. Laws § 19 (enacting N.D.C.C. ch. 12.1-19) and § 41 (repealing N.D.C.C. ch. 12-25). The provisions in N.D.C.C. ch. 12.1-19 were repealed by the adoption of the Abortion Control Act in 1975. See 1975 N.D. Sess. Laws ch. 124 (adopting N.D.C.C. ch. 14-02.1).
[¶ 37] The provisions prohibiting abortions were continuously in effect before statehood, at statehood, and after statehood, and I have found no contrary reference to abortions in the North Dakota Constitution, nor in the 1889 debates of the North Dakota Constitutional Convention. See Official Report of the Proceedings and Debates of the First State Constitutional Convention of North Dakota (1889). Our state constitution is silent about creating a state constitutional right to abortion, and the prevailing practice in the Dakota Territory and when the relevant constitutional provisions were adopted prohibited abortions except to preserve a woman's life. The laws of the Dakota Territory and this State thus provide no long-standing tradition recognizing a separate state right to an abortion, and the drafters of our constitution are presumed to know the existing laws and to have drafted the state constitution accordingly. See Orr, 375 N.W.2d at 177-78; Altevogt, 353 N.W.2d at 764-65. See also Mahaffey, 564 N.W.2d at 109-10.
[¶ 38] In some contexts, this Court has recognized our state constitution may be interpreted in light of changed circumstances. See Johnson v. Hassett, 217 N.W.2d 771, 779 (N.D.1974) (construing constitutionality of guest statute and stating in matters of constitutional law, as in other matters, times change and doctrine changes with the times); Ferch v. Housing Auth., 79 N.D. 764, 772, 59 N.W.2d 849, 856 (N.D.1953) (stating views as to what constitutes a public use vary with changing conceptions of scope and functions of government); State v. Norton, 64 N.D. 675, 686, 255 N.W. 787, 792 (1934) (stating constitution is living, breathing vital instrument, adaptable to the needs of the day as was so intended by the people when adopted). In view of the laws affirmatively prohibiting abortion in the Dakota Territory and North Dakota when the relevant constitutional provisions were adopted and the absence of a reference to abortion during proceedings leading up to adoption of the state constitution, however, I decline to hold the people of North Dakota intended to create a liberty right to abortion under the state constitution. See Mahaffey, 564 N.W.2d at 109-11. I discern no basis for concluding the North Dakota Constitution imposes greater restrictions upon the State than the federal constitution. In view of the competing state interests involved in the "unique act of abortion" recognized in Casey, 505 U.S. at 842, 871-72, 112 S.Ct. 2791, I agree with the rationale of the Michigan Court of Appeals that our state constitutional provisions were not intended to encompass a fundamental right to abortion justifying review under strict scrutiny and the compelling state interest test. I therefore
[¶ 39] The district court's analysis was primarily under the state constitution, but the court also described case law analyzing the right to abortion under the federal constitution and said the challenged provisions also were unconstitutional under federal precedent prohibiting regulations placing an undue burden on a woman's right to an abortion before viability.
[¶ 40] The State argues the district court exceeded its jurisdiction by deciding the federal constitutional issue, which the State claims was not raised in the complaint or tried by consent. The State argues a decision on the federal constitutional issue was not required to resolve this case.
[¶ 41] As a rule of construction, we independently interpret our state constitution in light of the text and history of that document, but as a practical matter we may not deny a person a right secured by the federal constitution. See, e.g., Southeast Cass Water Res. Dist. v. Burlington N. R.R. Co., 527 N.W.2d 884, 890 (N.D. 1995) (recognizing state constitution may not grant narrower rights than guaranteed by federal constitution). Our state constitutional analysis of the right to an abortion under the state constitution has no effect on the right to obtain an abortion under the federal constitution. See Mahaffey, 564 N.W.2d at 111; Preterm Cleveland, 627 N.E.2d at 577. I therefore consider the challenged provisions in H.B. 1297 under the undue burden standard of the federal constitution. See Preterm Cleveland, at 577.
[¶ 42] Under the undue burden standard, I consider the district court's interpretation of the specific language at issue in H.B. 1297, which defines an "abortion-inducing drug" as a "medicine, drug, or any other substance prescribed or dispensed with the intent of causing an abortion." 2011 N.D. Sess. Laws ch. 109, § 1. The legislation defines an "abortion" as the "act of using or prescribing any instrument, medicine, drug, or any other substance, device, or means with the intent to terminate the clinically diagnosable intrauterine pregnancy of a woman ... with knowledge that the termination by those means will with reasonable likelihood cause the death of the unborn child," but provides such use or prescription is not an abortion if done with the intent to save the life or preserve the health of the unborn child, to remove a dead unborn child caused by a spontaneous abortion, or to treat a woman for an ectopic pregnancy. Id.
[¶ 43] In the context of those definitions, the challenged language pertaining to the use of an "abortion-inducing drug" for a medication "abortion" provides:
2011 N.D. Sess. Laws ch. 109, § 6.
[¶ 44] Statutory interpretation is a question of law, fully reviewable on appeal. In re P.F., 2008 ND 37, ¶ 11, 744 N.W.2d 724. In enacting a statute, it is presumed the legislation is intended to comply with the state and federal constitutions, the entire statute is intended to be effective, a just and reasonable result is intended, a result feasible of execution is intended, and public interest is favored over any private interest. N.D.C.C. § 1-02-38. Words in a statute are given their plain, ordinary, and commonly understood meaning unless defined by statute or unless a contrary intention plainly appears. N.D.C.C. § 1-02-02. Statutes are construed as a whole and are harmonized to give meaning to related provisions. N.D.C.C. § 1-02-07. If the language of a statute is clear and unambiguous, the letter of the statute must not to be disregarded under the pretext of pursuing its spirit. N.D.C.C. § 1-02-05. If the language of a statute is ambiguous, however, a court may resort to extrinsic aids to determine the intention of the legislation, including the object sought to be attained, the circumstances under which the legislation was enacted, and the legislative history. N.D.C.C. § 1-02-39. A statute is ambiguous if it is susceptible to different, rational meanings. State v. Meador, 2010 ND 139, ¶ 11, 785 N.W.2d 886.
[¶ 45] The determination whether a statute is constitutional is a question of law, which is fully reviewable on appeal. State v. Holbach, 2009 ND 37, ¶ 23, 763 N.W.2d 761. All regularly enacted statutes carry a strong presumption of constitutionality,
[¶ 46] In considering the challenged language in H.B. 1297, the State argues the district court erred in construing the legislation to ban all medication abortions. The State argues the language in H.B. 1297, when construed together to give meaning to each word and phrase, requires adherence to the FDA final-printed-label protocol for medication abortions.
[¶ 47] The protocol for mifepristone's FDA final-printed-label regimen and the off-label use for mifepristone for medication abortions require mifepristone to be used in conjunction with misoprostol. The parties do not dispute misoprostol has not been separately approved by the FDA for use in abortions and the FDA final-printed-label protocol for misoprostol authorizes use of misoprostol to treat ulcers but is silent on abortion-related uses. The medical evidence in this record reflects mifepristone by itself, completes a medication abortion in about seven percent of cases, and misoprostol is necessary to complete the medication abortion in the remainder of cases. As construed in conjunction with the FDA final-printed-label protocol, those definitions suggest a complete prohibition of medication abortions using misoprostol. See Cline, 2013 OK 93, ¶¶ 15-17, 313 P.3d 253 (construing abortion-inducing drug under Oklahoma statute to include misoprostol; citing statutory definition of abortion-inducing drug as including misoprostol). Unlike the statutory definition of abortion-inducing drug at issue in Cline, however, H.B. 1297 does not specifically define abortion-inducing drug to include misoprostol, and other provisions in H.B. 1297 require that medication abortions follow the FDA final-printed-label protocol for the abortion-inducing drug. Mifepristone is an abortion-inducing drug and incorporates the use of misoprostol in that regimen. When read together, the amendments are not clear about whether H.B. 1297 was intended to include misoprostol as an abortion inducing drug and to prohibit all medication abortions or to require medication abortions to follow the FDA final-printed-label protocol for mifepristone. I therefore consider extrinsic aids in construing H.B. 1297, including the legislative history.
[¶ 48] The legislative history for H.B. 1297 does not include any references to a total ban on all medication abortions; rather, the legislative history manifests that the legislation was intended to permit medication abortions under the protocol tested and authorized by the FDA final-printed-label protocol. See Hearing on H.B. 1297 Before House Human Servs. Comm., 62nd N.D. Legis. Sess (Jan. 31, 2011) (testimony of Representative Betty Grande that legislation uses FDA guidelines for definitions and safe practices; written testimony of Christopher T. Dodson, Executive Director of North Dakota Catholic Conference that use of abortion-inducing drug is in manner
[¶ 49] I also construe the plain language of H.B. 1297 to require a physician prescribing, giving, administering, or otherwise providing an abortion-inducing drug to enter a signed contract with another physician for emergencies associated with the use or ingestion of the abortion-inducing drug and to require the pregnant woman be provided with the name and telephone number of the other physician who will be handling emergencies and the hospital at which any emergencies will be handled. Moreover, the plain language of the amendments requires the other physician to have admitting privileges and gynecological and surgical privileges at the designated hospital. The district court construed the provisions for the emergency services contract to require the prescribing or providing physician to enter an "exclusive" contract with another physician. Although the language of H.B. 1297 requires a physician prescribing or providing an abortion-inducing drug to enter a written contract with another physician for emergency services, the plain language does not require an exclusive contract and does not preclude the prescribing or providing physician from giving a pregnant woman other additional information for dealing with emergencies, such as going to the nearest available hospital for an emergency. Moreover, I also note the plain language about the emergency services contract does not include any geographical limitations like the admitting and staffing privileges requirement in the 2013 amendments in S.B. 2305.
[¶ 50] Finally, the plain language of H.B. 1297 requires an abortion-inducing drug used for the purpose of inducing an abortion to be administered in the same room and in the physical presence of the prescribing or dispensing physician. The State contends misoprostol, the second drug employed in the off-label protocol and the FDA final-printed-label protocol for medication abortions, is not an "abortion-inducing drug" prescribed or dispensed with the intent of causing an "abortion" when used after mifepristone because misoprostol expels the contents of the uterus and does not cause or induce the death of an unborn child, as those terms are defined in the legislation. I agree with the State's interpretation of H.B. 1297 that misoprostol is not an abortion-inducing drug under the language in H.B. 1297, but I nevertheless recognize the FDA final-printed-label protocol requires misoprostol to be administered orally at the clinic two days after mifepristone.
[¶ 51] Having construed the challenged provisions in H.B. 1297, I consider that
[¶ 52] In DeWine, 696 F.3d at 513-18 (opinion by McKeague, J.), the Sixth Circuit Court of Appeals, in a 2-1 decision, affirmed a summary judgment dismissing a challenge to an Ohio statute requiring adherence to the dosage requirements and gestational time limits in the FDA final-printed-label protocol for medication abortions. The court held the statute did not have the effect of creating a substantial obstacle to a woman's right to an abortion and did not impose an undue burden on a woman's ability to make the decision to have an abortion. Id. The court explained the ban on medication abortions from 50 to 63 days after a woman's last menstrual period was not an undue burden because the ban on that method of abortion for that time frame did not preclude a surgical abortion, which was the most common method of abortion for that time period. Id. at 514-16. The court said a woman's right to choose an abortion did not encompass the right to choose a particular method of abortion. Id. The court explained the right to abortion under federal jurisprudence protects the freedom to decide whether to terminate a pregnancy, but has not been extended to a woman's preferred method of terminating a pregnancy. Id. at 516. The court concluded in the absence of any evidence the statute created a substantial obstacle to the ultimate abortion decision, any conclusion about what a woman might prefer did not create a disputed issue of material fact. Id. The court also determined the increased costs associated with increased or different dosages of medication under the FDA final-printed-label protocol did not create an undue burden on a woman's right to an abortion. Id. at 516. The court cited Casey for the proposition that although at some point increased costs could become a substantial obstacle to a woman's right to obtain an abortion, increased costs associated with additional trips to an abortion clinic did not constitute an undue burden on a woman's right to an abortion for a large fraction of affected women. 696 F.3d at 517. The court concluded the provisions for medication abortions at issue in that case did not constitute an undue burden on a woman's right to an abortion before viability. Id. at 514-17.
[¶ 53] In Abbott, 748 F.3d at 600-05, the Fifth Circuit Court of Appeals considered a facial challenge to a Texas statute requiring medication abortions follow the FDA final-printed-label protocol for mifepristone and concluded the statute was constitutional. In the context of that facial challenge, the court applied Gonzales to analyze whether restrictions on medication abortions from 50 to 63 days after a woman's last menstrual period facially imposed an undue burden on the abortion right of women who, because of gynecological abnormalities, cannot safely undergo a surgical abortion during that time period. Abbott, at 600-05. The court concluded the Texas statute's requirement for adherence to the FDA final-printed-label protocol for medication abortions did not facially require a court imposed exception for the life or health of a woman. Id. The court explained the Texas statute did not ban an entire abortion method; rather, it shortened the window during which a woman may elect to have a medication abortion. Id. The court held the statute, on its face, did not impose an undue burden on the life
[¶ 54] In Humble, 753 F.3d at 907, 911-18, the Ninth Circuit Court of Appeals reversed a federal district court decision denying a motion to preliminarily enjoin enforcement of Arizona regulations restricting medication abortions to the FDA final-printed-label protocol. The Ninth Circuit Court of Appeals concluded Abbott and DeWine were inconsistent with the undue burden test articulated in Casey and Gonzales, stating the Fifth and Sixth Circuits' approach failed to recognize the undue burden test is context-specific and both the severity of a burden and the strength of the state's justification can vary depending on the circumstances. Humble, at 914-15. The Ninth Circuit Court of Appeals adhered to its approach in Tucson Woman's Clinic v. Eden, 379 F.3d 531, 539 (9th Cir.2004), which the court explained required weighing the extent of the burden against the strength of the state's justification in the context of each individual state regulation. Humble, at 914-15. The court concluded the Arizona regulation, on the record before the court for the preliminary injunction, appeared wholly unnecessary for a woman's health. Id. In reversing the denial of a preliminary injunction, the court said the plaintiffs had provided uncontroverted evidence Arizona's regulation of medication abortions substantially burdens a woman's access to abortion services and Arizona provided no evidence the law advances its interest in a woman's health. Id. at 916-17.
[¶ 55] I recognize the split in the federal circuits on issues relating to medication abortions, which ultimately may require resolution by the United States Supreme Court. I agree, however, with the application of the undue burden standard by the Fifth and Sixth Circuits because I conclude those decisions reflect the proper deference to a state's interest in a woman's health and in potential life under Gonzales and Casey.
[¶ 56] During the legislative process, the proponents of H.B. 1297 provided the legislature with information describing dangers of abortion-inducing drugs and the need for regulation. See Hearings on H.B. 1297 Before House and Senate Human Servs. Comms., 62nd N.D. Legis. Sess. (Jan. 31, 2011 and March 14, 2011) (prepared testimony of Christopher T. Dodson, Executive Director of North Dakota Catholic Conference with attached exhibit). The legislature was also provided with contrary information describing the efficacy of a medication abortion at the Clinic under the off-label protocol. See Hearing on H.B. 1297 Before Senate Human Servs. Comm, 62nd N.D. Legis. Sess. (March 14, 2011) (testimony of Tammi Kromenaker, Director of Red River Woman's Clinic).
[¶ 57] On its face, H.B. 1297 reflects a legitimate purpose to protect women from asserted dangers of off-label use of an abortion-inducing drug for a medication abortion while permitting surgical abortions and medication abortions using the FDA final-printed-label protocol. "Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn." Gonzales, 550 U.S. at 158, 127 S.Ct. 1610. The plaintiffs have presented evidence reflecting medication abortion is extremely safe and the off-label protocol used by the Clinic has advantages
[¶ 58] I have construed H.B. 1297 to permit medication abortions under the FDA final-printed-label protocol for mifepristone and to not require an exclusive contract with another physician for emergency services. As I have construed H.B. 1297, I am not persuaded the purpose or effect of the legislation imposes a substantial obstacle on a woman's right to an abortion before viability under federal precedent. To the extent the district court made contrary determinations about the effect of H.B. 1297, the court's findings were based on its erroneous interpretation of the language of H.B. 1297 and the court's erroneous application of strict scrutiny to the legislation. We have often said findings of fact based on an erroneous conception of the law are not entitled to deference under the clearly erroneous standard of review. See, e.g., MayPort Farmers Coop. v. St. Hilaire Seed Co., Inc., 2012 ND 257, ¶ 4, 825 N.W.2d 883.
[¶ 59] I agree with the ultimate conclusions in DeWine and Abbott that statutes requiring adherence to the FDA final-printed-label protocol for medication abortions are rational regulations related to the regulation of the medical profession to promote a woman's health and respect for life, including the life of the unborn, and do not constitute an undue burden on a woman's right to an abortion before viability. I conclude the rationale of DeWine and Abbott is persuasive for assessing H.B. 1297 under applicable federal precedent. I conclude the challenged provisions of H.B. 1297, on their face and as I have construed them, do not constitute an undue burden on a woman's right to abortion before viability under applicable federal precedent.
[¶ 60] Under N.D. Const. art. VI, § 4, the concurrence of four members of this Court is required to declare a statute unconstitutional. Only two members of this Court would hold the provisions of H.B. 1297 regulating medication abortions unconstitutional under the state constitution. Three members of this Court would hold those statutory provisions unconstitutional under the federal constitution but neither is that a sufficient majority under N.D. Const. art. VI, § 4. See State ex rel. Olson v. Maxwell, 259 N.W.2d 621, 629 (N.D. 1977) (holding by three justices of this Court that statute as written and as applied to female prisoners transferred outside State failed to comply with procedural due process standards required under both federal and state constitutions and stating that because concurrence of four members of this Court is required to declare statute unconstitutional under language currently found in N.D. Const. art. VI, § 4, the statute was not declared unconstitutional by a sufficient majority). I would reverse the judgment declaring H.B. 1297 unconstitutional and permanently enjoining the State from enforcing H.B. 1297.
[¶ 61] GERALD W. VANDEWALLE, C.J.
KAPSNER, Justice.
[¶ 62] Terry Dwelle, M.D., in his official capacity as chief administrator of the North Dakota Department of Health, appealed from a judgment permanently enjoining the State from enforcing 2011 amendments to the North Dakota Abortion Control Act, N.D.C.C. ch. 14-02.1, regulating medication abortions ("H.B. 1297") and from an order preliminarily
[¶ 63] The State argues the district court erred in construing H.B. 1297 as a ban on all medication abortions, in determining a fundamental right to an abortion exists under the North Dakota Constitution, and in applying strict scrutiny to the challenged provisions of H.B. 1297. We conclude the district court did not err in applying strict scrutiny to the challenged provisions in H.B. 1297 under our state constitution. We conclude the district court did not err in construing the challenged provisions in H.B. 1297 as a de facto ban on all medication abortions. Furthermore, we conclude that, even under the more lenient undue burden standard, the challenged provisions in H.B. 1297 are unconstitutional. The district court judgment permanently enjoining the State from enforcing H.B. 1297 should be affirmed.
[¶ 64] This case is not directly about the right to an abortion. A right to abortion exists under federal law. Roe v. Wade, 410 U.S. 113, 153, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (concluding the Fourteenth Amendment's concept of personal liberties and restrictions on state action is broad enough to encompass a woman's decision to terminate her pregnancy). Abortion is permitted under state law. N.D.C.C. § 14-02.1-04. The legislation at issue did not explicitly ban medication abortions. (This opinion refers to "medication abortions." The district court referred to "medical abortions." Both refer to the same procedure.). Had the legislation at issue taken effect, abortion still would have been legal in the state of North Dakota. Instead, the legislation at issue in this case regulated abortions. Thus, this case should not be viewed in the controversial light surrounding abortion, but should be viewed as a case involving the legislature's regulation of medical practices and pharmaceutical drugs. At issue is a woman's liberty interest in making fundamental, appropriate, and informed medical decisions in consultation with her doctor. As the evidence shows, however, in some instances, for medical reasons, a woman is unable to have a surgical abortion. In those cases, the legislation is an obstacle to a safe and appropriate form of abortion and does reach the woman's right to have an abortion in any form. The case also touches on a doctor's right to practice good medicine without fear of prosecution.
[¶ 65] In July 2011, MKB Management Corporation ("MKB"), doing business as the Red River Women's Clinic (the "Clinic"), and Kathryn L. Eggleston, M.D., a physician licensed in North Dakota and the medical director at the Clinic, sued Dr. Dwelle and Birch Burdick, in his official capacity as State's Attorney for Cass County, for a declaration that certain provisions in H.B. 1297 for medication abortions violate the North Dakota Constitution. The plaintiffs allege the Clinic is the only abortion provider in North Dakota and serves women residing in North Dakota, as well as women who travel to the Clinic from Minnesota and South Dakota. The plaintiffs allege the Clinic offers both surgical and medication abortions and performed a total of about 1,300 abortions in 2010. According to Dr. Eggleston, in 2007 the Clinic began offering medication abortions using two prescription drugs, mifepristone
[¶ 66] A medication abortion is one that is brought about by taking medications that will end a pregnancy. Two medications are used as part of the medication abortion: mifepristone and misoprostol. Mifepristone works by blocking the hormone progesterone, which is necessary to sustain pregnancy. Without this hormone, the lining of the uterus breaks down, the cervix softens, and bleeding begins. Misoprostol causes the uterus to contract and empty. (Trial Exhibit 30). This case centers, in part, around the difference between the FDA label protocol and the "off-label" or "evidence-based" protocol for administering medication abortions.
[¶ 67] Under the FDA label protocol, the patient takes 3 mifepristone tablets (600 mg) at the Clinic. The patient must then return to the Clinic two days later to take 2 misoprostol tablets (400 mg) orally. The patient must then return to the Clinic a third time on or about day 14 for an ultrasound to confirm that the pregnancy has been terminated. (Trial Exhibit 3).
[¶ 68] Under the evidence-based protocol, the patient takes 1 mifepristone tablet (200 mg) at the Clinic. The patient then takes 4 misoprostol tablets (800 mg) buccally at home 24-48 hours later. The patient returns for a second visit in 1-3 weeks to confirm that the pregnancy has been terminated. (Trial Exhibit 12).
[¶ 69] The challenged provisions for medication abortions in H.B. 1297 were scheduled to take effect on August 1, 2011, and generally regulate the use of an "abortion-inducing drug" for the purpose of inducing an "abortion" in a pregnant woman. 2011 N.D. Sess. Laws ch. 109, § 6. The plaintiffs allege H.B. 1297 violates the Clinic's patients' rights under N.D. Const. art. I, §§ 1 and 12 by: (1) banning all medication abortions; (2) banning medication abortions for women between 50 and 63 days of pregnancy; (3) banning safer and more effective "off-label" medication abortions; (4) banning medication abortions when a surgical abortion would threaten a woman's health; and (5) requiring women receiving a medication abortion to be provided with misleading information about emergency treatment.
[¶ 70] In July 2011, the district court restrained enforcement of H.B. 1297 pending resolution of the plaintiffs' motion for a preliminary restraining order. In February 2012, the court preliminarily enjoined enforcement of H.B. 1297 during the lawsuit, concluding the plaintiffs were likely to prevail on their state constitutional challenge. The court described the existing undue burden standard for reviewing abortion legislation under the due process clause of the Fourteenth Amendment of the United States Constitution from the plurality opinion in Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 876-78, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). In granting the preliminary injunction, the court said the language in N.D. Const. art. I, § 1, is more expansive than the due process language in the federal constitution and cited Hoff v. Berg, 1999 ND 115, 595 N.W.2d 285, and State v. Cromwell, 72 N.D. 565, 9 N.W.2d 914 (N.D.1943), for its determination that a woman's liberty right under the state constitution is fundamental and includes the freedom to have an abortion
[¶ 71] After an April 2012 trial on the merits, the district court permanently enjoined the State from enforcing the challenged provisions in H.B. 1297. The court reiterated its earlier determination that a woman's right to an abortion is a fundamental liberty right under N.D. Const. art. I, §§ 1 and 12 and restrictions on that right were subject to strict scrutiny, which required the challenged legislation be narrowly drawn and necessary to address a compelling need. The court again construed the amendments in H.B. 1297 as banning all medication abortions after concluding misoprostol is an abortion-inducing drug and the final-printed-label protocol for misoprostol is not separately approved by the FDA for medication abortions. The court concluded the ban on all medication abortions was unconstitutional under the state constitution and was also an undue burden on a woman's right to an abortion before viability under the federal constitution. The court further ruled the state and federal constitutional provisions were violated by: (1) the requirement for dispensing or administering misoprostol in the same room and physical presence of the prescribing physician; (2) the 14-day difference in gestational limits for performing medication abortions under the FDA final-printed-label protocol and the off-label protocol; (3) the requirement for an exclusive emergency services contract; and (4) the lack of exceptions for a woman's health, for victims of rape and abuse, and for physical abnormalities. The court permanently enjoined enforcement of the challenged provisions in H.B. 1297.
[¶ 72] In June 2013, the district court granted the plaintiffs' motion to supplement its complaint to add Kromenaker as a plaintiff and to raise a state constitutional challenge to 2013 legislation in S.B. 2305 requiring physicians performing abortion procedures to have admitting and staffing privileges at a hospital within thirty miles of the abortion facility. See 2013 N.D. Sess. Laws ch. 118, § 1. On July 31, 2013, the court preliminarily enjoined the State from enforcing S.B. 2305 pending trial. The State appealed from the judgment permanently enjoining enforcement of the 2011 amendments in H.B. 1297 and from
[¶ 73] While the appeal was pending, the parties stipulated to dismiss the plaintiffs' claim to enjoin enforcement of the 2013 amendments in S.B. 2305. The district court dismissed that claim and vacated the order preliminarily enjoining enforcement of S.B. 2305. We therefore dismiss the State's appeal from the order preliminarily enjoining enforcement of S.B. 2305.
[¶ 74] The State argues the district court erred in interpreting the language in H.B. 1297. The State argues H.B. 1297 does not create a de facto ban on medication abortions, H.B. 1297 does not require physicians to direct patients to go to a specific physician and hospital if they have complications, H.B. 1297 does not require public disclosure of the contract, and H.B. 1297 does not impose criminal liability on physicians if a patient does not attend an appointment.
[¶ 75] Statutory interpretation is a question of law, fully reviewable on appeal. In re P.F., 2008 ND 37, ¶ 11, 744 N.W.2d 724.
McDowell v. Gillie, 2001 ND 91, ¶ 11, 626 N.W.2d 666. In enacting a statute, it is presumed the legislation is intended to comply with the state and federal constitutions, the entire statute is intended to be effective, a just and reasonable result is intended, a result feasible of execution is intended, and public interest is favored over any private interest. N.D.C.C. § 1-02-38. Words in a statute are given their plain, ordinary, and commonly understood meaning unless defined by statute or unless a contrary intention plainly appears. N.D.C.C. § 1-02-02. Statutes are construed as a whole and are harmonized to give meaning to related provisions. N.D.C.C. § 1-02-07. If the language of a statute is clear and unambiguous, the letter of the statute must not be disregarded under the pretext of pursuing its spirit. N.D.C.C. § 1-02-05. If the language of a statute is ambiguous, however, a court may resort to extrinsic aids to determine the intention of the legislation, including the object sought to be attained, the circumstances under which the legislation was enacted, and the legislative history. N.D.C.C. § 1-02-39. A statute is ambiguous if it is susceptible to different, rational meanings. State v. Meador, 2010 ND 139, ¶ 11, 785 N.W.2d 886.
2011 N.D. Sess. Laws ch. 109, § 6.
[¶ 77] The State argues H.B. 1297 does not create a de facto ban on medication abortions. This argument is based upon the State's proposition that the plain language of H.B. 1297's definitions of "abortion" and "abortion-inducing drug" allow for a reading under which mifepristone is classified as an abortion-inducing drug and misoprostol is not. This scenario could exist if "abortion" meant only the detachment of the fetus from the uterine lining, and not the expulsion of the fetus from the uterus. However, the definition of abortion includes the prescription of medicine, drug, or any other substance with the intent to terminate the intrauterine pregnancy of a woman. Section 1 of H.B. 1297 specifically excludes from the definition of abortion the use or prescription when the intent is to "[r]emove a dead unborn child caused by spontaneous abortion." This exclusion would not be necessary if the expulsion of an already detached fetus were not included in the statutory definition of abortion.
[¶ 78] Section 6 of H.B. 1297 requires that an "abortion-inducing drug" be administered in a manner that "satisfies the protocol tested and authorized by the federal food and drug administration and as outlined in the label for the abortion-inducing drug." Misoprostol has not been separately approved by the FDA for use in medication abortion procedures. However, the FDA label protocol specifies the use of misoprostol in conjunction with mifepristone. The evidence in this case is that mifepristone alone accomplishes an abortion, including the expulsion of the fetus from the uterus, in only about seven percent of the cases. Misoprostol is necessary to complete the abortion process in about ninety-three percent of the cases. Thus, under our reading of the definitions of "abortion" and "abortion-inducing drug," the FDA label provision of H.B. 1297 necessarily operates as a de facto ban on medication abortions under current medical practices, at least until such a time as misoprostol is separately approved by the FDA for use in abortions or our statute is amended.
[¶ 79] For those women for whom a surgical abortion is not a possibility and for those women who are between 49 and 63 days past their last menstrual period, H.B. 1297 also operates as a complete ban despite the evidence presented at trial that the protocol developed using mifepristone and misoprostol is a safe and effective option for terminating an early pregnancy.
[¶ 80] When H.B. 1297 requires that medication abortions follow the FDA label protocol and that protocol includes the use of both mifepristone and misoprostol, it is unclear from the legislation whether both were intended as abortion-inducing drugs. It is, however, clear that any use of misoprostol that varies from the FDA label would subject a physician to criminal liability. Since the evidence establishes that the current standard of care for medication abortion varies from the FDA label, the legislation operates as a de facto ban as found by the district court.
[¶ 81] The State argues H.B. 1297 does not require physicians to direct patients to go to a specific physician and hospital if they have complications and does not require public disclosure of the signed contract for emergency services beyond the identified statutory requirements. We assume, without deciding, for purposes of this opinion, the State is correct in this interpretation. As discussed below under
[¶ 82] The State argues H.B. 1297 does not impose criminal liability on physicians if a patient does not attend an appointment. Section 6 of H.B. 1297 states:
We assume that the limited interpretation of the State is correct. However, it begs the question. The district court concluded the plain language of this provision would impose criminal liability on a physician who provides abortion services under the evidence-based methods which the testimony indicates is the current standard of medical care. A physician who did not schedule three separate appointments, but who provided misoprostol to be taken buccally at home, would not satisfy the protocol of the FDA label. Such care would therefore be unlawful. The State's interpretation could only apply to appointments scheduled under the FDA label protocol.
[¶ 83] The district court analyzed the challenged legislation under strict scrutiny and under the undue burden test. We hold the district court properly applied both tests under our state constitution, and we discuss each separately.
[¶ 84] The State argues the district court erred in finding a right to abortion exists under the North Dakota Constitution and in applying strict scrutiny to the analysis of whether the challenged portion of H.B. 1297 is unconstitutional. One of this Court's highest powers is the authority to hold that a statute passed by our legislature violates the constitution of this state. Because of the gravity of such a ruling, we view statutes as presumptively constitutional, and we exercise our power with "restraint, caution, and reluctance," and only where "constitutional infirmity" has been demonstrated. Hoff v. Berg, 1999 ND 115, ¶ 7, 595 N.W.2d 285 (citations omitted). The party challenging the constitutionality of a statute has the burden of proving its constitutional infirmity. State v. Brown, 2009 ND 150, ¶ 30, 771 N.W.2d 267. The determination whether a statute is constitutional is a question of law, which is fully reviewable on appeal. State v. Holbach, 2009 ND 37, ¶ 23, 763 N.W.2d 761.
[¶ 85] Pursuant to N.D. Const. art. I, §§ 1, 12:
[¶ 86] The preambles to the constitutions of the United States and the state of North Dakota celebrate liberty as a fundamental interest to be fostered and protected by these two forms of government. Other than Article I, Sections 9 and 10, the federal constitution said little about personal liberty until the addition of its amendments. Article I, Declaration of Rights, in our state constitution articulates those rights its framers considered fundamental. The "liberty" language of the 5th Amendment of the United States Constitution — "nor shall any person be ... deprived of life, liberty, or property, without due process of law" — and the 14th Amendment — "nor shall any state deprive any person of life, liberty or property, without due process of law" — is mirrored in section 12 of the North Dakota state constitution: "No person shall be ... deprived of life, liberty or property without due process of law." But article I, section 1 of the North Dakota state constitution has articulated a liberty interest that is more expansive and without parallel in the federal constitution. Like the Supreme Court of Tennessee, we are "not free to discount the fact that the framers of our state constitution used language different from that used by the framers of the United States Constitution. No words in our constitution can properly be said to be surplusage." Planned Parenthood of Middle Tennessee v. Sundquist, 38 S.W.3d 1, 14 (Tenn.2000).
[¶ 87] In interpreting constitutional provisions, we apply general principles of statutory construction. Thompson v. Jaeger, 2010 ND 174, ¶ 7, 788 N.W.2d 586. Our overriding objective is to give effect to the intent and purpose of the people adopting the constitutional provision. City of Bismarck v. Fettig, 1999 ND 193, ¶ 8, 601 N.W.2d 247. The intent and purpose of constitutional provisions are to be determined, if possible, from the language itself. Thompson, at ¶ 7. In construing constitutional provisions, we ascribe to the words the meaning the framers understood the provisions to have when adopted. Kadrmas v. Dickinson Pub. Schs., 402 N.W.2d 897, 899 (N.D.1987).
[¶ 88] The Journal of the Constitutional Convention shows that the language originally proposed for article III, section 1 was: "All men are born equally free and independent, and have certain inherent, inalienable and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness." Journal of the Constitutional Convention for North Dakota 66 (1889). By the time of the first reading on July 31, 1889, the language was amended to read: "All men are by nature equally free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing and protecting property and reputation, and pursuing and obtaining safety and happiness." Id. at 157. The Debates of the Convention indicate virtually no discussion about Section I. See Official Report of the Proceedings and Debates of the First Constitutional Convention of North Dakota 361 (1889). This language was adopted unanimously on August 13, 1889 by the framers of our state constitution. Thus, we are left with the plain meaning of the language.
[¶ 90] This Court has recognized the due process language in N.D. Const. art I, § 12 "protects and insures the use and enjoinment of the rights declared" by N.D. Const. art. I, § 1. Cromwell, 72 N.D. at 574-75, 9 N.W.2d at 919. In different contexts, this Court has discussed issues about the rights secured by N.D. Const. art. I, §§ 1, 12. See Hoff, 1999 ND 115, ¶¶ 8-18, 595 N.W.2d 285 (holding grandparent visitation statute unconstitutional under due process clause of state and federal constitutions; stating parents have fundamental right to parent children and only compelling state interest justifies burdening parents' fundamental right); Cont'l Res., Inc. v. Farrar Oil Co., 1997 ND 31, ¶¶ 15-18, 559 N.W.2d 841 (discussing property rights protected by state constitution in context of compulsory pooling order for horizontal oil and gas well; recognizing property is subject to police power to impose restrictions as practically necessary for general welfare of all); State ex rel. Schuetzle v. Vogel, 537 N.W.2d 358, 360-64 (N.D.1995) (recognizing person's constitutionally protected liberty interest to refuse unwanted medical treatment and balancing liberty interest against relevant state penological interest); Matter of K.A.S., 499 N.W.2d 558, 560-68 (N.D.1993) (discussing due process in context of statute for court-appointed counsel for indigent parent in termination and adoption proceeding; construing statute to require court-appointed counsel for indigent parent in termination and adoption proceedings to avoid equal protection infirmity); Johnson v. Elkin, 263 N.W.2d 123, 128-30 (N.D.1978) (identifying liberty right to engage in ordinary occupation without state regulation; recognizing police power to impose restrictions on right for general welfare of all); Bob Rosen Water Conditioning Co. v. City of Bismarck, 181 N.W.2d 722, 724 (N.D.1970) (upholding requirement for plumbing license to install water softener; stating police power is not absolute and individual liberty may be restrained or abridged to benefit public welfare); State v. Odegaard, 165 N.W.2d 677, 680 (N.D.1969) (holding statute requiring motorcycle operator to wear crash helmet was legitimate exercise of police power and did not violate state or federal constitutions); Cromwell, 72 N.D. at 581, 9 N.W.2d at 922 (holding statute requiring license to engage in business of photography violated due process clause of state constitution).
[¶ 91] In Cromwell, 72 N.D. at 573-74, 9 N.W.2d at 918-19, this Court broadly described the "inherent rights" protected by the language in N.D. Const. art. I, §§ 1, 12, in the context of addressing a challenge to statutes prohibiting the practice of professional photography without a license. This Court explained:
Id. (citations and internal quotation marks omitted). Although the specific holding in Cromwell — that a statute requiring professional photographers to be licensed was unconstitutional — has been limited by subsequent cases, see Johnson v. Elkin, 263 N.W.2d at 128-30, its concept of fundamental rights under our state constitution has not.
[¶ 92] The State argues that the district court erred in finding a right to abortion. In its order of February 16, 2012, the district court held there is a right to an abortion under the North Dakota Constitution and the right is fundamental. The district court noted:
[¶ 93] The district court noted the highest courts of at least eleven states recognized their state constitutions protect a woman's right to an abortion: State of Alaska, Dep't of Health & Human Servs. v. Planned Parenthood of Alaska, Inc., 28 P.3d 904 (Alaska 2001); Comm. to Defend Reprod. Rights v. Myers, 29 Cal.3d 252, 172 Cal.Rptr. 866, 625 P.2d 779 (1981); In re T.W., 551 So.2d 1186 (Fla.1989); Moe v. Sec'y of Admin. & Fin., 382 Mass. 629, 417 N.E.2d 387 (1981). Women of the State of
[¶ 94] Most of the cases hold that strict scrutiny is the appropriate standard of review. However, the Mississippi Supreme Court adopted the Casey undue burden standard. Pro-Choice Mississippi, 716 So.2d at 655. It is the only state high court that has taken this approach. The intermediate court in Ohio adopted the Casey undue burden test in Preterm Cleveland v. Voinovich, 89 Ohio App.3d 684, 627 N.E.2d 570, 577 (1993), cert. denied, 68 Ohio St.3d 1420, 624 N.E.2d 194 (1993). Other courts have explicitly rejected the Casey test, applying strict scrutiny — a "recognized principle of constitutional law" that "has been applied repeatedly over the years." Planned Parenthood of Middle Tennessee, 38 S.W.3d at 16. The Tennessee court stated:
Id. at 17.
[¶ 95] The constitutional provisions of New Jersey and Tennessee are most similar to article 1, section 1 of the North Dakota state constitution. California, Florida, Alaska, and Montana have express rights of privacy in their constitutions. Many of the remaining decisions were based on less expansive provisions, more similar to section 12 of our state constitution or the due process clause of the Fourteenth Amendment to the federal constitution. The New Jersey decision is based on constitutional language very close to article 1, section 1 of our constitution, declaring liberty and the pursuit of happiness among the inalienable rights guaranteed to all persons. See Byrne, 450 A.2d at 934; N.J. Const. art. 1, § 1. The New Jersey court noted:
Id. "Where an important personal right is affected by governmental action, the Court often requires the public authority to demonstrate a greater `public need' than is traditionally required in construing the federal constitution." Id. at 936. The state funding restrictions on Medicaid abortions at issue were held to violate the New Jersey Constitution, even though
[¶ 96] Many states describe the right to an abortion to be a right of privacy; we do not find this difference to be significant. New Jersey, for example, described its right of privacy as arising under the following language of its constitution: "All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness." Byrne, 450 A.2d at 933. Tennessee, similarly found a right of privacy, determining that:
Planned Parenthood of Middle Tennessee, 38 S.W.3d at 15.
[¶ 97] The district court's analysis was thorough. We agree a fundamental right to choose abortion before viability exists under a woman's liberty interest in article 1, section 1 of the North Dakota constitution and that interest is protected under article 1, section 12.
[¶ 98] This Court previously held that individuals have both a federal and state constitutional liberty interest in refusing unwanted medical treatment, and that "a person's interest in personal autonomy and self-determination ... is a `fundamentally commanding one....'" State ex rel. Schuetzle, 537 N.W.2d at 362 n. 2. We conclude, as other states have held, that this liberty interest includes the right of a woman, with the advice of her doctor, to choose the course of medical treatment that she believes is best among comparable alternatives. See Matter of Guardianship of Ingram, 102 Wn.2d 827, 689 P.2d 1363, 1368 (1984) ("Unless outweighed by some state interest, a person has the right to choose one medical treatment over another...."); Hondroulis v. Schuhmacher, 553 So.2d 398, 417 (La.1988) ("[A] patient's right to choose her own medical treatment plan necessarily implies that she has a right to make considered and careful selections among the alternative medical options available in her case...."). This decision, like the decision to refuse medical treatment, is an exercise of a woman's personal autonomy and self-determination. Thus, the choice is a fundamental one and is protected under the right to liberty found in the North Dakota Constitution. The challenged legislation impacts the doctor's right to advise his or her patient about the current standard of medical care and the woman's right to choose the current standard of medical care, limiting instead the woman's choice to a protocol that the evidence describes as "outmoded," and
[¶ 99] Prior to the passage of H.B. 1297, medication abortions could be completed following the protocol for administration found on mifepristone's FDA label, or they could be completed following the "off-label," evidence-based regimen that has become standard practice in the medical community. The testimony indicated the evidence-based regimen had been used at the Clinic since 2007. The FDA label provision of H.B. 1297 takes the decision out of the hands of the woman and her doctor by requiring medication abortions to be performed in accordance with mifepristone's FDA label.
[¶ 100] When a state statute is alleged to burden a liberty right under the state constitution, this Court applies strict scrutiny. Hoff, 1999 ND 115, ¶ 13, 595 N.W.2d 285. "Where fundamental rights or interests are involved, a state regulation limiting these fundamental rights can be justified only by a compelling state interest and legislative enactments must be narrowly drawn to express only the legitimate state interests at stake." Id.
16A Am.Jur.2d Constitutional Law § 403 (2009). "The state, generally, has the burden of establishing that a state restriction which affects a fundamental right is necessarily related to a compelling interest." Id. See Matter of K.A.S., 499 N.W.2d at 565 ("[w]hen we use strict scrutiny, we do not defer to the legislative choice of classification but, instead, subject the classification `to close analysis in order to preserve substantive values of equality....'"). Because H.B. 1297 burdens a woman's liberty interest under the North Dakota state constitution, strict scrutiny applies to the determination of whether the challenged provisions of H.B. 1297 are constitutional.
[¶ 101] The State's only expressed purpose for the off-label administration ban portion of H.B. 1297 is "to protect the health of women seeking abortions by regulating medication abortions." (State's Appellate Brief, 24). In passing H.B. 1297, the legislature treated the administration of medication abortions differently than any other medical procedure under North Dakota law. The justification was that abortion "is a very unique situation and sometimes in unique situations they call for unique remedies." Hearing on H.B. 1297 Before the Senate Human Services Comm., 62nd N.D. Legis. Sess. (March 15, 2011) (Senate Standing Committee Minutes) (testimony of Senator Spencer Berry).
[¶ 102] Because prior to 1975 the state statutorily prohibited abortion, we must determine whether the state's justifications in interfering with a woman's liberty interest have changed over the years. The United States Supreme Court, in all decisions through Gonzales v. Carhart, instructs us that protection of unborn human life is not a sufficient justification to interfere with the liberty interest before viability. 550 U.S. 124, 146, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007) ("Before viability, a State `may not prohibit any woman from making the ultimate decision to terminate her pregnancy.'").
Id. at 200-01 (footnote omitted); accord Roe v. Wade, 410 U.S. at 149, 93 S.Ct. 705; Doe v. Bolton, 410 U.S. 179, 190-91, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973).
[¶ 104] The California court's attention to the dangers of abortion is echoed in the North Dakota newspapers which reported death or near death by abortion in a roughly ten-year period near the time North Dakota enacted its first anti-abortion laws. See Revised Codes of the Territory of Dakota, Penal Code, §§ 337, 338 (1877); Compiled Laws of the Territory of Dakota, Penal Code, §§ 6538, 6539 (1887); Revised Codes of the State of North Dakota, Penal Code, §§ 7177, 7178 (1895). See An Abortion Murder, Bismarck Tribune, Nov. 18, 1878; A Strange Case, Bismarck Tribune, May 6, 1881; Condensed Telegraph, Bismarck Tribune, April 28, 1882; Telegraphic Ticks, Bismarck Tribune, October 20, 1882; Death Caused by an Abortion, Bismarck Daily Tribune, October 9, 1891; Bowman Arraigned, Bismarck Daily Tribune, Oct. 16, 1891. The state's interest in maternal health has, in fact, changed with the advances of medical practice.
[¶ 105] In 1969, the Supreme Court of California invalidated a criminal abortion statute requiring certainty of a woman's impending death before abortion could be performed by a doctor. In so holding, the court noted "a definition requiring certainty of death would work an invalid abridgment of the woman's constitutional rights." Belous, 80 Cal.Rptr. 354, 458 P.2d at 199. The court reasoned:
Id. 80 Cal.Rptr. 354, 458 P.2d at 199-200 (citations omitted).
[¶ 106] Belous pre-dated Roe v. Wade, but Roe is consistent with the strict scrutiny
[¶ 107] The evidence in this case shows that medication abortions are in no more need of regulation than the multitude of other pharmaceutical drugs and medical procedures left unregulated by the legislature. As noted by the district court, the safety of medication abortions was a substantial focus of the trial, and the district court made findings based upon the evidence introduced. (Footnotes to the district court's opinion appear in an Appendix to this opinion.). The district court summarized:
The district court's findings accurately reflect the testimony given. The evidence establishes that there is no safety reason based on maternal health to limit medication abortions to the FDA label.
[¶ 108] The findings of the district court on this issue are supported on appeal by the amicus brief filed by the North Dakota Medical Association in support of affirmance, which urges this Court:
[¶ 109] In Doe v. Bolton, the United States Supreme Court, applying strict scrutiny, struck down Georgia statutes regulating the manner in which abortions could be performed in that state as a constitutionally impermissible interference with the woman's right to receive medical care and the doctor's right to practice medicine. 410 U.S. at 197, 199, 93 S.Ct. 739. Criminal sanctions were imposed on the doctor for violations of the statute. Id. at 188, 93 S.Ct. 739. "Viewing the Georgia statute as a whole, we see no constitutionally justifiable pertinence in the structure for the advance approval by the abortion committee.... We are not cited to any other surgical procedure made subject to committee approval as a matter of state criminal law. The woman's right to receive medical care in accordance with her licensed physician's best judgment and the physician's right to administer it are substantially limited by this statutorily imposed overview." Id. at 197, 93 S.Ct. 739. "Required acquiescence by co-practitioners has no rational connection with a patient's needs and unduly infringes on the physician's right to practice." Id. at 199, 93 S.Ct. 739.
[¶ 110] The State cannot establish that the legislation serves the purpose of protecting maternal health, let alone a compelling interest. Since the decision of the district court, other states have failed to provide evidence that similar legislation restricting the use of off-label, evidence-based protocols for medication abortions protects maternal health. Planned Parenthood
[¶ 111] Like the California Supreme Court in Belous, we conclude that considerations of maternal health do not provide a compelling state interest to support the constitutionality of the challenged legislation.
[¶ 112] Even where the State has a compelling interest in the regulation of medication abortions, the State has an additional burden to show that state legislation limiting the exercise of fundamental rights is narrowly tailored to address its compelling interest. See Hoff, 1999 ND 115, ¶ 13, 595 N.W.2d 285. Evidence in this case shows the challenged legislation is not narrowly tailored. As discussed below, the provisions of H.B. 1297 at issue do not satisfy the less-stringent, undue burden analysis's requirement that the challenged legislation further the State's purpose. These provisions do not promote women's health in any way, let alone in the most narrowly tailored way. Because we hold below that these provisions cannot stand under the less-stringent undue burden standard, we do not repeat the analysis here. The challenged provisions of H.B. 1297 are not narrowly drawn to address the State's proffered interest.
[¶ 113] We agree with Minnesota, Montana, California, Alaska, New Jersey, Tennessee, and other courts that the State must establish a compelling interest to interfere with a woman's fundamental right to an abortion prior to viability and must establish a narrow means of addressing its interest. The challenged legislation fails both tests. The decision of the district court permanently enjoining enforcement of H.B. 1297 should be affirmed.
[¶ 114] Although the district court determined the challenged portion of H.B. 1297 was unconstitutional under a strict scrutiny analysis, it also determined the challenged portion of H.B. 1297 was unconstitutional under the undue burden standard of analysis developed in federal caselaw. The district court's undue burden analysis is required under both the federal and our state constitution. We interpret our state constitution in light of the text and history of that document. "[W]e cannot interpret our state constitution to grant narrower rights than guaranteed by the federal constitution." Southeast Cass Water Res. Dist. v. Burlington N. R.R. Co., 527 N.W.2d 884, 890 (N.D.1995). Plaintiffs brought this action under several sections of the state constitution, primarily article I, sections 1 and 12. Although, as discussed above, the language in section 1 is more expansive than language in the federal constitution, section 12 virtually mirrors the language of the Fifth and Fourteenth Amendments to the federal constitution. Decisions arising under the comparable provision of the federal constitution must inform our decisions under the same language of our state constitution. Federal decisions interpreting and applying the Fourteenth Amendment become a minimum to our interpretation of section 12 of the state constitution in this context. Our own constitution requires this. See N.D. Const. art. I, § 23. We must therefore, at a minimum, consider the constitutionality, under our state constitution, of legislation regulating abortion under the undue burden standard developed in federal caselaw.
[¶ 116] In 1992, in Casey, 505 U.S. at 844, 112 S.Ct. 2791, the United States Supreme Court considered a federal constitutional challenge to several provisions of the Pennsylvania Abortion Control Act of 1982. In Casey, a plurality of the Supreme Court reaffirmed the "essential holding" in Roe that the right to terminate a pregnancy before viability is a liberty interest under the Fourteenth Amendment's due process clause:
Id. at 846, 112 S.Ct. 2791.
[¶ 117] In Casey, 505 U.S. at 852, 871-72, 112 S.Ct. 2791, the plurality discussed the practical difficulty in applying strict scrutiny to abortion regulations because of a state's important and legitimate interests in a woman's health and in potential life. The plurality opinion abandoned the trimester framework from Roe and instead applied an "undue burden" standard under the federal constitution to evaluate the constitutionality of abortion regulations before viability. Id. at 869-79, 112 S.Ct. 2791. The plurality decision described the undue burden standard:
Id. at 877-79, 112 S.Ct. 2791 (citations omitted).
[¶ 118] In Gonzales, 550 U.S. at 129, 132-33, 127 S.Ct. 1610, the United States Supreme Court considered the validity of the Partial-Birth Abortion Act of 2003, 18 U.S.C. § 1531, a federal statute regulating certain partial-birth abortion procedures in the second trimester, passed with the purpose of respecting the life of the fetus. The Court described "assume[d]" principles
Id. at 146, 127 S.Ct. 1610.
[¶ 119] In Gonzales, the Court construed the Partial-Birth Abortion Act and concluded it prohibited intentionally performing an intact dilation and evacuation procedure, but did not prohibit a standard dilation and evacuation procedure in which the fetus was removed in parts. 550 U.S. at 150-67, 127 S.Ct. 1610. The Court compared the two procedures and determined the regulation furthered the government's interest in promoting respect for life. Id. at 156-58, 127 S.Ct. 1610. The Court also determined there was disagreement whether the prohibited procedure was safer than the allowed procedure, therefore the challengers had not met their burden of proving that the regulation had the effect of imposing an undue burden by requiring women to undergo a less safe procedure. Id. at 161-63, 127 S.Ct. 1610.
[¶ 120] Unlike Gonzales, in this case, the State's expressed purpose for H.B. 1297 is "to protect the health of women seeking abortions by regulating medication abortions." (State's Appellate Brief, 24). Protecting women's health can be a legitimate purpose for pre-viability abortion regulation. See Casey, 505 U.S. at 878, 112 S.Ct. 2791 (plurality opinion). However, courts cannot simply take the legislature at its word that the law serves this interest. When conducting purpose prong analysis, courts must ensure that the state's interest in women's health is actually served by the legislation. See Gonzales, 550 U.S. at 158, 127 S.Ct. 1610 (analyzing a law under the purpose prong of the undue burden test and concluding the law "further[ed] the Government's objectives"); Humble, 753 F.3d at 913 (noting that a court must "ask[] whether and to what extent the challenged regulation actually advances the state's interest"). In Casey, the Court reasoned that "the means chosen by the State to further the interest in potential life must be calculated to inform the woman's free choice, not hinder it." 505 U.S. at 877, 112 S.Ct. 2791. "The same is true for laws purporting to protect women's health: they `must be calculated' to advance women's health, `not hinder it.'" Humble, 753 F.3d at 913 (citation omitted).
[¶ 121] The court in Humble was examining similar Arizona legislation that restricted medication abortions to FDA label protocols. As in this case, the state of Arizona was unable to demonstrate the legislation advanced maternal health. The Humble court, relying on Gonzales, 550 U.S. at 165-66, 127 S.Ct. 1610, noted the critical judicial function is to examine both the rationale for the legislation and the burden it imposes, determining that uncritical deference is "inappropriate" where constitutional rights are at stake. Humble, 753 F.3d at 913. See also Planned Parenthood of Wisconsin, Inc. v. Van Hollen,
[¶ 122] The Ninth Circuit was critical of the decisions in Planned Parenthood of Greater Texas Surgical Health Services v. Abbott, 748 F.3d 583 (5th Cir.2014), and Planned Parenthood Southwest Ohio Region v. DeWine, 696 F.3d 490 (6th Cir. 2012), reh'g & reh'g en banc denied (Nov. 30, 2012), because of the failure in those cases to do a complete undue burden analysis as articulated and applied in Casey and Gonzales: "The Fifth and Sixth Circuits' approach fails to recognize that the undue burden test is context-specific, and that both the severity of a burden and the strength of the state's justification can vary depending on the circumstances." Humble, 753 F.3d at 914.
[¶ 123] The district court in this case took evidence which applied to both the State's proffered rationale for the legislation and to the burden it imposed. The district court did a complete Casey/Gonzales analysis.
[¶ 124] As discussed above, the testimony and evidence at trial shows that a de facto ban on medication abortions does not protect women's health.
[¶ 125] Analyzing the FDA label provision on its face, the voluminous record in this case supports the district court's conclusion: requiring adherence to mifepristone's FDA label does not protect women's health. In order to conclude the FDA label provision of H.B. 1297 protects women's health, there must be credible evidence that off-label abortions, which had become accepted practice in the medical community prior to this legislation, are more dangerous than abortions performed under the regimen described in the FDA label. Legislation for legislation's sake that does not protect women's health cannot be sustained applying either strict scrutiny or the undue burden standard of constitutional scrutiny under Casey. See Casey, 505 U.S. at 877-78, 112 S.Ct. 2791.
[¶ 126] There is no evidence in the record to support the theory that the medication abortion protocol approved by the FDA is safer for women than the evidence-based medication abortion protocol being used by MKB. Similarly, when passing H.B. 1297, the legislature itself recognized, "There was no testimony that indicated there was more risk with off label use." Hearing on H.B. 1297 Before the Senate Human Services Comm., 62nd N.D. Legis. Sess. (March 15, 2011) (Senate Standing Committee Minutes).
[¶ 127] In its amicus brief, the North Dakota Medical Association described its opposition to H.B. 1297's FDA label provision:
(Footnotes omitted).
[¶ 128] Testimony indicates that evidence-based, off-label medication abortion protocol is as safe as the FDA label protocol and, in fact, may even be more beneficial to women's health. With respect to off-label use, the FDA itself notes:
Use of Approved Drugs for Unlabeled Indications, FDA Drug Bulletin, Vol. 12 No. 1, April 1982 at 4-5 (emphasis added).
[¶ 129] Dr. Eggleston, medical director of the Clinic, testified that they use an evidence-based protocol for medication abortions, rather than the FDA label protocol, because "numerous studies ... have shown that the evidence-based method of medical abortion is safe and more effective [than the FDA label protocol] specifically up to 63 days gestational age." "There's been many evidence-based studies that show that the 600 milligrams, which is what was given — described in the [FDA label], is equivalent to 200 milligrams of the Mifepristone. And so there's — they're equally effective so there's no reason to give more medication than needed. And it's also three times as expensive." Dr. Daniel Grossman noted that "one of the studies found an increased risk of nausea with women who received [the FDA label's prescribed dosage] of Mifepristone compared to [the dosage given under evidence-based protocol]." Dr. Eggleston testified, "[T]here's been numerous studies that have compared [evidence-based and off-label administration of misoprostol] and the — the [evidence-based administration] has been shown to be very safe and more
[¶ 130] Dr. Grossman testified that a study conducted at National Abortion Federation member clinics the year after mifepristone was approved by the FDA found that only 4% of facilities surveyed were administering medication abortions in accordance with the FDA label protocol; "the vast majority of providers were using evidence-based regimens." Dr. Grossman also testified that this immediate shift away from the FDA label protocol indicated that protocol was "obsolete about the same time it was authorized." Dr. Grossman noted that, under the 2005 American College of Obstetrician's and Gynecologists ("ACOG") guidelines on medication abortions:
Dr. Grossman testified the ACOG reaffirmed its findings in 2011, and noted that, "compared to the FDA regimen, the evidence-based regimen ... is essentially more effective and associated with a lower cost and can be used up to 63 days gestation." Dr. Grossman concluded:
[¶ 131] The testimony of the State's only witness supports the conclusion that the off-label protocol for medication abortions is no more dangerous than administration pursuant to the FDA label protocol. Dr. Donna J. Harrison, Executive Director of the American Association of Pro-life Obstetricians and Gynecologists, testified:
Dr. Harrison also acknowledged that the ACOG concluded, "Multiple large studies in the United States have demonstrated that a patient can safely and effectively administer the Misoprostol, paren, orally or vaginally in her home." Dr. Harrison also acknowledged that the World Health Organization concluded, "Home use of Misoprostol is a safe option for women." Dr. Harrison did not provide an explanation as to why regulation of medication abortions should be limited to the FDA label, rather than the evidence-based protocol, instead stating that her opinion is that the FDA should revoke all approval of mifepristone.
[¶ 132] The evidence at trial supports the district court's conclusions that there was no evidence the FDA label protocol was beneficial or advantageous in protecting women's health, when measured against the evidence-based, medically-preferred, off-label protocol.
[¶ 133] In other areas of our statutes, the North Dakota legislature has recognized the importance of allowing physicians to prescribe medications based on best practices and their own medical judgment, rather than adhering to a drug's FDA label. N.D.C.C. § 26.1-36-06.1 controls health insurance coverage for off-label uses of drugs. That statute requires health insurance providers to provide coverage for drugs administered off-label "if the drug is recognized for treatment of the indication in one of the standard reference compendia or medical literature." Id. In passing this statute, the North Dakota legislature recognized that "[f]or [the FDA] to go back and reassign the drugs is very costly and through usage of drugs more advantages are found." Hearing on H.B. 1428 Before the Senate Human Services Comm., 55th N.D. Legis. Sess. (March 5, 1997) (Senate Standing Committee Minutes). They also recognized that medical doctors were in a better position to make judgments regarding the use of off-label drugs. Hearing on H.B. 1428 Before the House Industry, Business and Labor Comm., 55th N.D. Legis. Sess. (Jan. 27, 1997) (written testimony of Rep. Ralph Kilzer). No other statutes have been passed by the legislature to ban off-label administration in other areas of medicine.
[¶ 134] Off-label treatment is common in other medical contexts, such as the treatment of cancer:
Guidance for Industry IND Exemptions for Studies of Lawfully Marketed Drug or Biological Products for the Treatment of Cancer, U.S. Department of Health and Human Services, 4 (Jan.2004).
[¶ 135] The restrictions at issue beg the question: would the legislature ban off-label treatment for other medical conditions? For example, use of off-label drugs is prevalent in the treatment of prostate cancer. See Zosia Chustecka, Significant
[¶ 136] Evidence at trial was consistent with our statutory recognition of off-label use. When asked whether Dr. Grossman was "aware of any other areas of medical practice where physicians are restricted from prescribing drugs off-label where such off-label use has been documented as safe either in published medical journals or as consistent with the standard of care," Dr. Grossman testified that he was "not aware of any other example."
[¶ 137] The testimony and evidence at trial supports the conclusion that the emergency contract provision of H.B. 1297 does not protect women's health, is unnecessary, is burdensome, can result in confusing instructions to patients, and is impossible to fulfill. The State argues that H.B. 1297 does not require physicians to direct patients to go to a specific physician and hospital if they have complications. Even assuming such an interpretation is plausible, it does not support the constitutionality of the challenged provision. The legislation provides:
2011 N.D. Sess. Laws ch. 109, § 6.
[¶ 138] The district court described the required contract as an exclusive contract. The language of the legislation supports this description. From the perspective of the physician agreeing to take on the responsibilities, it would certainly be perceived as an exclusive contract requiring continuous availability to meet the needs of patients coming from North Dakota, South Dakota, and Minnesota. The legislation requires that this physician have privileges at "the hospital designated to handle any emergencies associated with the use or ingestion of the abortion-inducing drug." 2011 N.D. Sess. Laws ch. 109, § 6. The district court found, with support in the record, that these conditions were impossible to fulfill. As the testimony indicated, in the event of a medical emergency, patients have been regularly told to refer to the nearest medical center. Even if the State's interpretation of the contract is correct, by requiring the physician to give the patient a copy of the contract indicating the "name and telephone number of the physician who will be handling emergencies and the hospital at which any emergencies will be handled," id., the State's interpretation, at best, allows for confusing information to be provided to the patient. This is not in the interest of
[¶ 139] The district court found that the emergency contract provision did not advance maternal health because it was unnecessary. The district court noted the complications associated with miscarriage and medication abortion are identical and so is the treatment. The difference is that complications associated with a miscarriage often arise later in the pregnancy when the fetus is more developed. Treating complications associated with miscarriage is a common medical event as the evidence established that one in seven pregnancies ended in spontaneous abortion. Complications associated with childbirth are also common medical events treated regularly throughout the medical community. Forty-three medical facilities distributed throughout North Dakota are capable of providing emergency care if complications arise from an abortion. The evidence before the district court established that MKB was only aware of one emergent situation for the Clinic patients which required a blood transfusion which was given in Minnesota.
[¶ 140] The district court's findings accurately reflect the evidence and testimony. Even under the State's more forgiving interpretation, the emergency contract provision of H.B. 1297 does not protect women's health.
[¶ 141] With respect to the effect of the de facto ban on medication abortions, the district court found:
[¶ 142] The district court's findings accurately reflect the evidence and testimony. A de facto ban on medication abortions places a substantial obstacle in the path of a woman seeking a pre-viability abortion.
[¶ 143] H.B. 1297's ban of off-label administration of abortion-inducing drugs would apply independently to misoprostol, if it ever becomes separately approved by the FDA for abortions. However, mifepristone's FDA label also regulates the use of misoprostol in conjunction with mifepristone. With respect to the effects of the plain language of the FDA label provision of H.B. 1297, the district court found:
[¶ 144] Dr. Eggleston testified about the effect of the criminal liability imposed by the FDA label provision of H.B. 1297:
Kromenaker testified similarly:
Thus, the effect of the criminal liability imposed by H.B. 1297 would be for providers to stop providing medication abortions.
[¶ 145] The district court's findings accurately reflect the evidence and testimony. The FDA label provision of H.B. 1297, on its face, places a substantial obstacle in the path of a woman seeking a pre-viability abortion.
[¶ 146] With respect to the effects of the emergency contract provision of H.B. 1297, the district court found that it was impossible to fulfill because no doctor would be willing to enter into such an onerous contract. The district court found that the contract was unnecessary because emergency situations relating to abortion were extremely rare. MKB was aware of only one patient who needed a blood transfusion, which was provided in Minnesota. To the extent emergency situations might arise following a medication abortion, they were similar to complications arising from spontaneous abortions or complications from childbirth. These were common medical events which medical centers around the state routinely and effectively treated. Patients were routinely told if they need emergency treatment to go the closest hospital or emergency room. If the legislation became effective, the requirement that the patient be provided with the contract of "the physician who will be handling emergencies and the hospital at which any emergencies will be handled" will be unnecessarily confusing to the patient, contrary to safe practices and safe emergency procedures. This would be particularly true for any patient living at some distance from "the physician who will be handling emergencies and the hospital at which any emergencies will be handled."
[¶ 147] With respect to the effects of the disclosure requirements of the emergency contract provision of H.B. 1297, the district court found:
(Footnote omitted).
[¶ 148] The State argues the district court's finding that the "contract would be available to many upon demand" is an
[¶ 149] The district court's findings accurately reflect the evidence and testimony. The emergency contract provision of H.B. 1297 places a substantial obstacle in the path of a woman seeking a pre-viability abortion.
[¶ 150] Because the challenged provisions of H.B. 1297 cannot withstand strict scrutiny and because they place an undue burden on a woman's right to an abortion under her liberty interest of our state constitution, we would affirm the district court's permanent injunction of H.B. 1297.
[¶ 151] One further comment needs to be made. Although it is my opinion that the district court correctly decided this case under substantive state and federal law, it is the opinion of three justices that the district court correctly applied federal constitutional law to these facts. See Crothers Opinion, at ¶ 165. It, therefore, becomes a question of whether an injunction correctly entered under federal constitutional law can be dissolved.
[¶ 152] We are faced with this question because of article VI, section 4 of our state constitution, which provides:
[¶ 153] This Court has never faced a situation where the court has divided over interpretations under the state and federal constitutions so as to call into question the interpretation of article VI, section 4 itself. I am of the opinion that this section has to be read in harmony with article I, section 23:
[¶ 154] The supreme law of the land is even clearer. Article VI of the United States Constitution provides:
[¶ 155] Where federal constitutional law speaks, it controls. A state may grant greater rights, but not lesser. Reading article VI, section 4 in harmony with article I, section 23, it is impermissible under article VI, section 4 to dissolve an injunction prohibiting the enforcement of a law that constitutes "an undue burden on a woman's right to an abortion before viability under the federal constitution," VandeWalle Opinion, at ¶ 11, when a majority of this Court agrees it was correctly entered under federal law.
[¶ 156] MARY MUEHLEN MARING, S.J., concurs.
3 By the time they are 45 years old, approximately one-third of all women in the United States have chosen an elective abortion. R. at 194.
5 A copy of the citizen petition was filed as an attachment to Harrison's affidavit.
6 In Roe, the Court noted that the risks incident to childbirth were much higher than any associated with first trimester abortions. This was the basis for its holding that during this period no regulation purporting to safeguard women's health was permissible. Roe, 410 U.S. at 163, 93 S.Ct. 705. In this case, a relative risk assessment comparing early surgical abortions to medical abortions may be more appropriate. This is clearly the position taken by the state and its expert.
7 Available at http://www.who.int/reproductivehealth/publications/unsafeabortion/97892415484341.
8 Kelly Cleland et al., Significant Adverse Events and Outcomes After Medical Abortion, Obstetrics and Gynecology, Vol. 121, No.1, 166-171 (Jan. 2004).
9 When specific forms of complication are viewed in isolation, some statistical differences do emerge. For example, the medical approach is more likely to cause excessive bleeding or to leave retained tissue. Conversely, the surgical approach is obviously more likely to result in operative complications such as a perforation. R. at 197-200. Dr. Harrison has tended to emphasize the specific risks that are higher in medical abortions, relying primarily on the results of a registry-based study performed in Finland. R. at 390. Even that study, however, concludes that both medical and surgical abortions are "safe." R. at 391. It also reports no discernible differences in the rates of infection, psychiatric morbidity or death. R. at 392.
16 Even this testimony is at odds with other portions of her testimony. If there is any validity to Dr. Harrison's theories that Mifeprex suppresses immune reactions, or interferes with natural clotting mechanisms, the administration of three times the necessary dosage obviously becomes even less defensible.
17 MKB only collects financial information from patients living in North and South Dakota, but there is no reason to conclude this evidence is not fairly representative.
18 One aspect of that history does live on. As part of the Mifeprex approval process, the FDA did require that all patients sign an agreement which incorporates portions of the FPL protocol. Ex. 3, pps. 30-31. This unprecedented requirement serves no meaningful purpose, but it does create a conundrum for physicians. The typical solution is to have the patient also sign a second agreement requesting treatment consistent with the standard of care. This is the approach followed by MKB. Ex. 36; R. at 113-14. According to Dr. Grossman, it is also the approach followed by other providers. R. at 259, 316.
19 A copy of this bulletin is attached to the Grossman affidavit as Exhibit B.
20 The FPL protocol both decreases overall efficiency and increases the typical time to expulsion. In the U.S. trials, only 44.1% of patients completed expulsion within four hours. For many test participants, this process took more than 24 hours. Ex. 3, pp. 4-5.
21 Among other things, the WHO is responsible for establishing norms and standards for evidence-based medical procedures. R. at 474. The combination of mifepristone and misoprostol is now included on the WHO model list of essential medicines. R. at 477.
22 One of the studies both parties frequently referred to at trial analyzed the relative efficacies of the oral and buccal
28 The evidence on this point was equivocal.
29 One notable exception is an ectopic pregnancy. Medical abortion is not a safe or viable approach in such cases. This is a well-known reality, something all providers are expected to guard against. To rule out an ectopic pregnancy, MKB performs an ultrasound on all patients before a medical abortion is initiated. This simultaneously confirms the pregnancy has not progressed beyond 63 days LMP. R. at 24-25.
CROTHERS, Justice.
[¶ 157] On the merits, I concur in the result reached by Justice Kapsner. I respectfully disagree with the result reached by Chief Justice VandeWalle. I respectfully disagree with both of my colleagues that this case should be decided under the North Dakota Constitution because the federal constitutional interpretations which we must follow make analysis under our constitution unnecessary and doctrinally improper.
[¶ 158] I also respectfully disagree with Justice Sandstrom's suggestion that the challenge before this Court can be decided only under the North Dakota Constitution. Sandstrom opinion at ¶ 168. I find no support for that position and, apparently, neither do my colleagues. See VandeWalle opinion at ¶ 39 ("The district court's analysis was primarily under the state constitution, but the court also described case law analyzing the right to abortion under the federal constitution and said the challenged provisions also were unconstitutional under federal precedent prohibiting regulations placing an undue burden on a woman's right to an abortion before viability."); Kapsner opinion at ¶ 71 ("The court further ruled the state and federal constitutional provisions were violated....").
[¶ 159] Justice Sandstrom describes the district court as making only brief reference to H.B. 1297 violating the United States Constitution. ("The district court... also said the statute violates the United States Constitution...."). Sandstrom opinion at ¶ 169. That is a description with which I must again respectfully disagree. The district court expressly decided the case under both the United States and the North Dakota Constitutions. In the district court's concluding words:
(Emphasis added).
[¶ 160] The district court's holding was preceded by extensive citation to federal judicial rulings, including four pages of analysis under the heading "Federal Law." The district court's "Federal Law" discussion opened with the sentence, "If it is ultimately determined that the liberty and freedoms guaranteed by the state constitution to [sic] not extend to a woman's reproductive
[¶ 161] Because the district court decided the constitutionality of H.B. 1297, the North Dakota Supreme Court is obliged to adhere to our established principles of constitutional interpretation and application. The first of those principles is that the North Dakota Constitution can grant greater rights, but we are not at liberty to construe the North Dakota Constitution to grant fewer rights than those ensured by similar provisions in the United States Constitution. This result obtains from our precedent. State v. Nordquist, 309 N.W.2d 109, 113 (N.D.1981) ("It is a topic of little debate that the States are `independently responsible for safeguarding the rights of their citizens.' In this regard a State may provide its citizens greater protection than the safeguards guaranteed in the Federal Constitution.") (citations omitted); State v. Matthews, 216 N.W.2d 90, 99 (N.D.1974) ("It is within the power of this court to apply higher constitutional standards than are required of the States by the Federal Constitution."); Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 30 L.Ed.2d 618, (1972); State v. Taylor, 60 Wis.2d 506, 210 N.W.2d 873, 882 (1973); Southeast Cass Water Res. Dist. v. Burlington N. R.R. Co., 527 N.W.2d 884, 890 (N.D.1995) ("[W]e cannot interpret our state constitution to grant narrower rights than guaranteed by the federal constitution."). This result obtains from the supremacy clause of the United States Constitution. U.S. Const. art. 6, cl. 2. And this result obtains from the North Dakota Constitution acknowledging federal constitutional interpretations as "the supreme law of the land." N.D. Const. art I, § 23.
[¶ 162] A second established principle of constitutional interpretation and application is that courts do not render advisory opinions. "A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them." Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 445, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988). "Courts should think carefully before expending scarce judicial resources to resolve difficult and novel questions of constitutional or statutory interpretation that will have no effect on the outcome of the case." Ashcroft v. al-Kidd, ___ U.S. ___, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011) (citations and quotation marks omitted).
[¶ 163] This Court long ago and consistently has recognized we are without authority to give advisory opinions. See, e.g., State v. State Bd. of Canvassers, 44 N.D. 126, 172 N.W. 80, 85 (1919) ("The opinion of the court upon this question during the pendency of legislative action would amount to no more than an advisory opinion for the guidance of the other departments. Under the Constitution we are not authorized to perform such a function."); Interest of C.W., 453 N.W.2d 806, 810 (N.D.1990) (We "should not give advisory opinions on academic questions where no actual controversy needs to be determined."). This is never more true than when the issue involves interpretation of a
[¶ 164] On the substantive questions regarding constitutionality of the challenged provisions, the district court and the VandeWalle and Kapsner opinions of this Court all acknowledge that our holding here can recognize no less freedom from governmental intrusion than controlling federal constitutional interpretations. VandeWalle opinion at ¶ 41; Kapsner opinion at ¶ 114. They do this because the United States Constitution provides a floor below which a similar state constitution provision cannot be construed to provide those challenging the law with fewer or narrower rights. See Southeast Cass Water Res. Dist., 527 N.W.2d at 890. The analytical point of departure for my colleagues and me is that they first address the question under our state constitution. I would first answer the question under federal precedent. Only if the law survives federal constitutional review does it become necessary to determine whether more expansive individual rights are protected under the North Dakota Constitution. I recognize that states do not uniformly apply this approach; however, our precedent prohibiting advisory opinions and advocating judicial restraint direct that it is the proper approach here. See 16 C.J.S. Constitutional Law § 157 ("Some state courts address state constitutional claims before reaching the federal ones, while another reaches the federal constitutional claim first, unless it appears that the state provision is distinctive.") (footnotes omitted).
[¶ 166] Regarding the effect of this Court's ruling on the injunction, I agree with Chief Justice VandeWalle, and respectfully disagree with Justice Kapsner, that the division of positions in this case requires reversal of the judgment declaring H.B. 1297 unconstitutional and permanently enjoining the State from enforcing H.B. 1297. VandeWalle opinion at ¶ 60; Kapsner opinion at ¶¶ 151-55. Article VI, section 4, of the North Dakota Constitution, requires that at least four of five justices agree to declare a legislative enactment unconstitutional. That provision constricts this Court's ability to declare a statute unconstitutional. Article VI, section 4, does not specify that the restriction only operates when a legislative enactment is struck down under the North Dakota Constitution. Rather, the focus of Article VI, section 4 is on the striking down of a legislative enactment, and not whether unconstitutionality arises under the United States Constitution or the North Dakota Constitution. Because only three of five justices conclude H.B. 1297 is unconstitutional, the district court's judgment should be reversed.
[¶ 167] DANIEL J. CROTHERS, J.
SANDSTROM, Justice.
[¶ 168] The sole constitutional issue properly before this Court is whether the contested statute — House Bill 1297 — violates the North Dakota Constitution. Whether that statute violates the United States Constitution is not an issue that was pled or tried in the district court, it is not an issue specified on appeal by either party, and it is not properly before this Court.
[¶ 169] The plaintiffs made a conscious decision to seek to establish a separate state constitutional right to an abortion under the North Dakota Constitution. Presumably, they did so as a backup in case a right to an abortion ever ceases to exist under the United States Constitution. Plaintiffs never argued that the bill was unconstitutional under the United States Constitution. They never pled a United States Constitutional violation. A United States Constitutional violation was never tried by consent. The district court, in its 55-page order, also said the statute violates the United States Constitution, but the issue was not pled or tried by consent and thus was not before the district court, and the district court did not say how the issue was before it.
[¶ 170] The Chief Justice persuasively argues there is no separate state constitutional
[¶ 171] I would reverse the district court.
[¶ 172] A court is limited to deciding issues properly before it. When an issue has not been raised in the pleadings, it cannot be tried except by the parties' express or implied consent. N.D.R.Civ.P. 15(b). This Court has explained the process for amending the pleadings in this manner:
Mann v. Zabolotny, 2000 ND 160, ¶ 12, 615 N.W.2d 526. Here all the evidence introduced was relevant to the state constitutional issue.
[¶ 173] Recently, in SolarBee, Inc. v. Walker, 2013 ND 110, ¶¶ 2-5, 833 N.W.2d 422, this Court, composed of all the same members who sit on this case, was asked to reverse the district court because it decided the case at least in part on an issue not pled. This Court affirmed because the issue not pled was specified in the pretrial brief and specifically argued at trial without objection. Id. at ¶¶ 14-16. "We conclude that the `novelty' of the ... issue was reasonably apparent and the intent to try the issue was `clearly indicated by failure to object or otherwise.'" Id. at ¶ 16 (citing Mann, 2000 ND 160, ¶ 13, 615 N.W.2d 526).
[¶ 174] In this case the plaintiffs' complaint has seven claims for relief, each alleging H.B. 1297 violates the North Dakota Constitution. Those claims are as follows:
[¶ 175] Plaintiffs did not ask for relief under the United States Constitution. Although the parties discussed and argued federal precedent at certain times during the proceedings in this case, they did so only in the context of establishing whether there is a right to abortion under North Dakota's constitution and whether H.B. 1297 violates that alleged state right. See Mann, 2000 ND 160, ¶ 12, 615 N.W.2d 526 ("[A]mendment of pleadings by implication may only arise when the evidence introduced is not relevant to any issue pleaded in the case."). The plaintiffs in this case made a strategic decision to limit the issue to one of state law — a situation very different from the one we were presented with in SolarBee, in which the unpled issue was specifically argued and relied upon as a potential avenue for damages. See SolarBee, 2013 ND 110, ¶ 14, 833 N.W.2d 422. Here the plaintiffs do not argue that the U.S. Constitutional issue was tried by consent, the district court did not assert that it was, and the other justices cannot claim that it was.
[¶ 176] Because United States constitutional law was not tried or made an issue by the consent of the parties under N.D.R.Civ.P. 15, we should not separately address whether H.B. 1297 constitutes an undue burden on a woman's right to abortion under United States constitutional law.
[¶ 177] The issues on appeal are those identified by the parties in their statement of issues. N.D.R.App.P. 28. In the issues specified by the parties, below, neither identified unconstitutionality under the United States Constitution as an issue.
[¶ 178] On appeal, the State identified the following issues:
[¶ 179] The State further emphasized:
The State explained:
The State concluded this argument, saying, "The district court exceeded its jurisdiction by deciding an issue not raised in the Complaint or tried by consent of the parties. See N.D.R.Civ.P. 15(b)(2)."
[¶ 180] In its brief on appeal — responding to the brief that had been filed by the State — MKB identifies the following issues:
MKB's issues do not challenge the State's position that a U.S. Constitutional issue is not before this Court. MKB concludes its brief, "For the foregoing reasons, this Court should affirm the Trial Court's ruling that HB 1297 is unconstitutional under the North Dakota Constitution." The conclusion says nothing about violation of the U.S. Constitution.
[¶ 181] At oral argument, counsel for MKB responded to the Chief Justice, "I agree we haven't pled a federal constitutional violation." Later, when asked which of MKB's claims for relief raised a federal constitutional question, its counsel responded, "Plaintiffs aren't arguing that we raise any claims under the federal constitution."
[¶ 182] Justice Crothers mischaracterizes my position as saying "the challenge before this Court can be decided only under the North Dakota Constitution." My position is that we properly must decide only the North Dakota Constitutional issue because that was the only issue properly before the district court and is the only issue properly before this Court. The plaintiffs could have brought their case under both the federal and state constitutions, but they did not.
[¶ 183] I acknowledge that those who are not following our clear jurisprudence apparently do not agree with me that we have a duty to do so. That this is a controversial and emotional issue does not justify improperly reaching an issue not properly before us.
[¶ 184] I would reverse the district court. I agree with the Chief Justice and Justice Crothers that the statute has not been declared unconstitutional under either constitution by a sufficient majority, as required by the North Dakota Constitution.
[¶ 185] DALE V. SANDSTROM, J.
