North Dakota Supreme Court hears challenge to amended abortion ban; justices press on vagueness and constitutional scope

The North Dakota Supreme Court heard oral arguments in Access Independent Health Services v. Drew Wrigley over whether the Legislature's amended abortion ban is void for vagueness and whether it infringes rights protected by Article I, Section 1 of the state constitution.

The case matters because physicians say uncertainty in the law is preventing them from providing care in serious health situations, while the state argues the statute keeps within the constitution and uses familiar medical-judgment standards. Both sides asked the court either to affirm or to narrow the district court's prior ruling.

State counsel Phil Axe urged the court to reject a sweeping fundamental-rights theory and to treat the law's exceptions as understandable. Axe told the court that "North Dakota recognizes unborn children as human beings" and argued the state constitution should be read in light of historical understanding at statehood. On the statutory language he repeatedly urged the court to treat the exception terms as established medical-law standards, saying the statute's threshold is "a reasonable medical judgment." He also pointed to the law's intent requirement, arguing that "the statute only applies in the first place if you act with deliberate intent to kill an unborn child," and urged the court not to facially invalidate the entire statute where some applications are clear.

Plaintiffs' counsel Mitra Metizada told the justices the law is "incomprehensible to physicians" and will lead to delays or denials of care. Metizada said the record shows "physicians don't know when they can provide care under the serious health risk exception" and highlighted scenarios health providers fear, including pre‑viable premature rupture of membranes (pre‑viable PPROM) and fatal fetal diagnoses. She argued the ban "categorically prohibits abortions to preserve a patient's mental health" and that the district court correctly held the amended ban unconstitutional on both vagueness and fundamental‑rights grounds.

Several justices pressed both counsel on remedial options, the practical effect on medical practice and the degree of elaboration the court must provide about the scope of any protected right. Some justices asked whether the court should resolve vagueness first or define the asserted constitutional right to set the proper standard for review. Counsel for the state said construing the statute to mirror malpractice standards or to read the statute's emergency/necessity language narrowly could avoid constitutional conflict; plaintiffs' counsel replied that the statute's multiple undefined terms and recorded physician disagreement make pre‑enforcement review necessary so patients can obtain time‑sensitive care.

Neither side asked the court to announce a decision at oral argument; the justices did not issue an opinion from the bench. The court took the case under advisement and will issue a written opinion later. The hearing included multiple questions from the bench about (1) the application of historical‑meaning analysis to Article I, Section 1, (2) whether the law's terms (for example, "reasonably prudent physician," "serious health risk," and "necessary") provide sufficient notice to doctors and prosecutors, and (3) whether a narrow remedial construction or a declaratory judgment limited to specified factual contexts would be a less intrusive remedy than a facial invalidation.

Background and procedure: the court called the case as Access Independent Health Services, et al., v. Drew Wrigley in his official capacity as Attorney General for the State of North Dakota; counsel for the state was Phil Axe, and counsel for the appellees was Mitra Metizada. The case was argued on the statutory text and its fit with prior North Dakota precedent including the court's earlier decision referenced as Wrigley I, and with federal precedent and long‑standing state‑law vocabulary. The court's clerks and several justices asked detailed hypotheticals about medical scenarios and prosecutorial practice; no rulings were announced from the bench.

The Supreme Court will issue a written decision at a later date. The court's webstream archive and posted opinions will contain the forthcoming opinion and any concurrences or dissents.