Attorney general has May 29 deadline to respond to abortion suit
BISMARCK -- North Dakota's attorney general has until May 29 to respond to a complaint filed against the state Wednesday alleging a recently passed anti-abortion law violates the state constitution.
Attorney General Wayne Stenehjem said Thursday that he has instructed three of his attorneys to research the complaint -- the state solicitor general and two who have been working on another abortion-related lawsuit against the state.
Wednesday's complaint was filed in the East Central District court in Fargo by the Center for Reproductive Rights, legal counsel for the Red River Women's Clinic in Fargo.
The complaint is against Cass County and the state, asking for an injunction over a new law that will effectively shut down the abortion clinic if it takes effect Aug. 1. The law, signed in March, requires all physicians performing abortions to have admitting privileges at a hospital within 30 miles of the clinic. The complaint says the three physicians at the clinic will not be granted privileges at the only three hospitals that fit the criteria.
To help, the center is asking that the complaint be added to the center's 2011 lawsuit that sought to strike down a state law prohibiting medicated abortions. After a three-day trial in April, a judge said he would strike down the 2011 law as being unconstitutional.
The center contends the more recent law has similar provisions to the 2011 case, so it should be folded into the case.
Stenehjem said one of the items being researched is whether the center can add the supplemental complaint to the 2011 case.
"It is unusual," he said. "It's common to see complaints, but the trial has been held, so we will be researching to see if it is permissible or not."
The center's litigation director, Julie Rikelman, said a rule under the North Dakota civil procedures allows an attorney to file supplemental complaints even after a trial when subsequent events have occurred.
Rikelman said there are similarities between the admitting privileges requirement of the new law and the 2011 law that required a physician performing an abortion to have a backup agreement with another physician who agrees to handle emergencies associated with the use or ingestion of the abortion-inducing drug.
"In those cases, you have a restriction on abortion that affects all women seeking services on the theory the minuscule number of women that need hospitalization after an abortion need added protections," she said.
The complaint claims no other medical care provided in the state is subject to restrictions such as those found in the new law, which also gives hospitals veto power over the clinic's ability to provide abortion care.
"This was a deliberate bill to shut the clinic down," said Tammi Kromenaker, director of the Red River Women's Clinic.
The complaint says only three hospitals fall within the 30-mile requirement: the Fargo Veterans Affairs Medical Center, Sanford Medical Center and Essentia Health.
Kromenaker said that based on information the clinic has received, none of the clinic's physicians will be able to obtain privileges at any of the three hospitals.
Essentia Health President and Chief Medical Officer Greg Glasner told Kromenaker they would not be able to since it has signed a contract stating it does not perform abortions.
The Fargo VA Medical Center told her the clinic wouldn't get privileges because it is not a trauma center and patients must be enrolled veterans.
Sanford Medical Center's application for privileges requires each applicant to demonstrate that he or she has provided inpatient service to at least five patients in the past 12 months.
The clinic has sent only one patient via ambulance to a hospital since it opened in 1998.
The clinic needs a North Dakota lawyer to staff the lawsuit since the Center for Reproductive Rights is based in New York.
Fargo attorney Joseph Turman, of Turman & Lang Ltd., will be local counsel for the clinic. Turman was involved with the medicated abortion case.
The Center for Reproductive Rights also plans to file a lawsuit challenging two other bills that passed this session. One prohibits an abortion if a fetal heartbeat is detected, which some say is as early as six weeks. The other prohibits an abortion if it's solely based on gender or a genetic abnormality. Both are scheduled to take effect Aug. 1.
Bernyk said the center will file the lawsuit in federal court in late June or early July.