Center for Reproductive Rights challenges admitting privileges statute
FARGO -- Tammi Kromenaker, director of North Dakota's sole abortion clinic, is confident a lawsuit filed Wednesday to strike down a recently passed anti-abortion law will be successful.
"Come Aug. 1st, I fully expect us to be open," she said, when the law is set to be implemented.
The Center for Reproductive Rights, legal counsel for the Red River Women's Clinic in Fargo, filed the suit against Cass County and the state, asking for an injunction over a law signed March 26 that requires a physician performing an abortion to have admitting privileges in a hospital within 30 miles of where the abortion is taking place, in the event an emergency prompted extensive medical attention.
The center plans to challenge two other recently passed anti-abortion bills.
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"As I testified in front of legislators, all these would be challenged in court," Kromenaker said. "We're just following through with the promise we said during the session to ensure reproductive services are offered in the state of North Dakota."
The center's complaint lists two defendants -- Cass County State's Attorney Birch Burdick and Terry Dwelle, the state health officer and director of the North Dakota Department of Health, who would be required to report to the attorney general any apparent violation of the abortion law.
Burdick did not return a call Wednesday.
Attorney General Wayne Stenehjem had not reviewed the complaint until late Wednesday, but said everyone understood there was this likelihood the bill would be litigated.
The attorney general's office is bound by the state constitution to uphold any laws passed by the legislature.
"The state of North Dakota gets sued often, that's why the office exists," he said Wednesday morning. "When lawsuits come, we respond to them."
In a news release, Nancy Northup, president and CEO of the Center for Reproductive Rights, called North Dakota lawmakers "relentless in their campaign to end safe and legal abortions in the state."
"Our message back to politicians hostile to reproductive rights in North Dakota and nationwide is crystal clear: We are going to fight back relentlessly against your attacks on the women of your state," she said. "We are not going to let you hijack women's decisions about their families, health and future. We are going to ensure that women's rights are protected with the full force of the law, and we are going to keep the full range of reproductive health care safe, legal and accessible to all women."
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A nearly identical law in Mississippi has been temporarily blocked by a federal judge after the center challenged the law on behalf of Mississippi's last remaining abortion clinic, according to a news release issued by the center.
The North Dakota lawsuit will be added to the center's 2011 lawsuit against a state law passed in 2011 that sought to prohibit the use of medication for an abortion and required tighter reporting requirements after an abortion is performed.
A state judge said in April, after a three-day trial in Fargo, that he would strike down the 2011 law as being unconstitutional.
Stenehjem said it's unusual to attempt to amend the complaint after the judge has indicated what he will do to the previous law.
"This is rather late in the proceedings to amend the complaint after the trials been held," he said.
In its most recent complaint, the center argues that the new law violates the rights of the clinic and its patients because:
- It imposes an arbitrary, medically unwarranted requirement on physicians who provide abortion care that will likely have the effect of banning the provision of all abortions in North Dakota.
- It unconstitutionally infringes upon a woman's fundamental right to choose to have an abortion.
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- It constitutes an unlawful delegation of legislative authority.
- It constitutes an impermissible special law.
- It violates the privileges and immunities of women seeking abortions and physicians providing abortions.
- It deprives the clinic's staff of their protected liberty and property interests in continuing to operate their ongoing medical practice and pursuing their chosen professions
The complaint notes that once the bill was signed into law March 26, physicians at the clinic immediately began the process of complying with the new regulations.
However, the clinic already has received indications from three Fargo-area hospitals within 30 miles that the clinic's physicians would not be granted privileges due to hospital policies on abortion care and the minimum number of patients doctors must admit per year to have admitting privileges.
The center says in its complaint that if the law does take effect, it will place the clinic and its physicians in an untenable position. The clinic's physicians can either continue providing abortions and put themselves at risk of criminal prosecution and conviction, or the clinic can cease providing abortion care, thereby denying women access to legal abortion care in North Dakota.
Since it opened in 1998, the clinic has had to transport only one patient to a hospital due to complications, the release said.
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North Dakota Catholic Conference Executive Director Christopher Dodson said in a statement said the clinic's actions reveal a sad disregard for women's health.
"The North Dakota legislature, taking into account the high volume of abortions conducted by itinerant physicians at the clinic, reasonably concluded that requiring physician privileges would better protect the health and safety of women seeking abortions," he said.
Standing outside the women's clinic, Kromenaker was adamant Wednesday, that while the bills passed, abortions are still legal and will be provided.
"Like I stressed all session, we are open, abortion is still legal," she said. "You hear ban and women automatically think its illegal."
The Center for Reproductive Rights said it will soon 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.
