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Port: The judge who temporarily blocked North Dakota's abortion ban shouldn't have that discretion

Judges are often held up as safety nets in the policy-making process. Should they be?

RedRiverWomensClinicFile
Protesters and patient escorts stand in front of the Red River Women's Clinic in downtown Fargo on Wednesday, July 27, 2022.
David Samson/The Forum
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MINOT, N.D. — The judiciary, both generally and specifically, has too much power to enjoin laws.

I'm talking about the injunctions you're always hearing about in the headlines when some hot-button issue is taken to court and a judge waves the magic gavel and sets aside the will of the people, or at least their elected representatives.

It happened recently here in North Dakota.

After the U.S. Supreme Court correctly struck down improperly decided judicial opinions that manufactured a right to an abortion in the U.S. Constitution, our state's law banning abortion in most instances, which was designed to take effect when those precedents were struck down, became an issue.

People who oppose that impending ban are in the process of taking it to court. They'd like North Dakota's judiciary to discover in our state constitution a right to an abortion in the same way the federal judiciary, in handing down Roe v. Wade, discovered a right to abortion in our national constitution.

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The first step they've taken in that process is asking a district court judge to enjoin North Dakota's trigger law. Which is to say they want a judge to block it while the matter is litigated. Last week, Burleigh County District Judge Bruce Romanick granted their request for a preliminary injunction .

The court had previously enjoined the law based on a technicality over the timing of when it would be triggered.

Most people reacting to that decision are viewing it through the lenses of their attitudes about abortion. Those who support the ban were upset; those who oppose it were jubilant.

I would ask you, my dear readers, to set aside, for a moment, how you feel about abortion and consider the law and whether it should give members of the judiciary like Judge Romanick too much discretion when it comes to setting aside our laws.

In North Dakota law, there are four tests governing when a judge may issue an injunction:

  1. Plaintiffs have a "substantial probability" of winning their challenge to the law
  2. Some irreparable injury would take place should the law be allowed to stand
  3. There is some potential harm to third parties
  4. The effect on public interest

Romanick wrote in his order authorizing the injunction that he was making no conclusions, one way or the other, about the merits of the challenge to the trigger law. So the first of these justifications is irrelevant to this discussion.
What Romanick used in justifying his injunction was a combination of reasons 2 through 4. He argues that there is harm to the Red River Women's Clinic, the abortion provider which is the plaintiff in this case, in banning abortions, and there is also harm for other parties, such as those who would seek abortions, and these harms trump the public's interest in seeing their laws implemented.

And there lies the rub.

People who favor legal abortion will no doubt agree with the judge. Their primary argument against abortion bans is that they harm people. This has been central to the debate over abortion for as long as there's been a debate over abortion.

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So, too, the counterargument, which is that abortions harm people, including the unborn child, and also the people who seek them.

That's the political debate which takes place at ballot boxes and in legislatures whenever new abortion policy is proposed. In North Dakota, we had that debate, and the people's representatives in the Legislature, in a deeply bipartisan fashion , implemented a ban that ought to be law now but is not thanks to more rigmarole in the courts.

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Judge Romanick's reasoning for setting aside the people's will, even temporarily, leaves much to be desired.

"[A]lthough Court recognizes that the State, and its citizens, have an interest in having statutes and legislature enacted, the Court would be remiss if it did not acknowledge the fact that the statute was enacted in 2007," Romanick wrote in his order. "The citizens have waited 15 years to have the statute enacted, in light of this length of time, any additional delay in the enactment would be minimal."

Based on this, Romanick concluded that the injury to the state and its people is less than the injury to the Red River Valley Women's Clinic. Which, it should be noted, has already decamped from North Dakota's jurisdictional boundaries, moving across the Red River from Fargo to Moorhead, Minnesota.

What harm can they suffer from North Dakota's laws while beyond their reach?

But I digress.

Romanick is operating within the law. The North Dakota Century Code, as described above, does give judges a lot of latitude to enjoin the law, and Romanick used it, whatever you or I may think of his reasoning.

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But judges like Romanic have too much latitude, I would argue.

Injunctions ought to be far rarer than they are.

Judges are often held up as safety nets in the policy-making process.

Should they be?

I'm not sure the judiciary is doing us any favors by saving us from ourselves.

Our policy debates should be focused on legislative chambers, and the ballot box, not courtroom arguments. Just as judges shouldn't be reading new law into existence, they shouldn't be measuring the harm of laws passed by the people or their representatives.

Harm should be a part of the political debate over a policy and irrelevant to any subsequent legal challenges. The courts, to the extent they're involved, should only consider whether a given law is legal, not whether it harms anyone.

Absent that judicial safety net, the political process might become more circumspect and less prone to extremes.

One would hope, anyway.

If not, who would we have to blame but ourselves?

However you feel about abortion, I think we've had quite enough of judges protecting us from ourselves. The legislature ought to change the law, and given the judiciary less authority to enjoin laws.

Opinion by Rob Port
Rob Port is a news reporter, columnist, and podcast host for the Forum News Service. He has an extensive background in investigations and public records. He has covered political events in North Dakota and the upper Midwest for two decades. Reach him at rport@forumcomm.com. Click here to subscribe to his Plain Talk podcast.
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