Dobbs and North Dakota

The Dobbs v. Jackson Women’s Health Organization case (hereafter Dobbs) is all over the media – I’m sure you’ve heard and read something about it by now. However, how important is it really? Can it overturn Roe v. Wade? What are the implications for abortions performed in North Dakota? Read on. We will try to present some answers to these questions in the following Q&As.
 
What is Dobbs about? The Dobbs case arises from a Mississippi law passed in 2018 (House Bill 1510) which prohibited almost all abortions after 15 weeks – 9 weeks earlier than the Supreme Court’s “viability” threshold of 24 weeks previously established in Roe v. Wade and reaffirmed in Planned Parenthood v. Casey. 
 
Who is Dobbs? Thomas Dobbs is the State Health Officer for Mississippi. In other words, he represents the state’s interests in this case to uphold their 15-week abortion law.
 
Are there exceptions in the Mississippi law? Yes. The law contains exceptions for medical emergencies and cases involving a “severe fetal abnormality,” however, it does not make exceptions for rape or incest.
 
Why is this case important? It is fundamentally saying two things. First, that the reasoning in Roe and Casey was flawed and a law based on viability is unsupported. As they state in their case document, “A viability rule has no constitutional basis, it harms state interests, and it produces other severe negative consequences.” Secondly, they make the case that the Constitution does not protect a right to abortion or limit States’ authority to restrict it. 
 
Could it result in the overturning of Roe v. Wade and stop all abortions in our country? Not entirely. SCOTUS is not likely to decide that Roe v. Wade was entirely wrong and should be thrown out (see Stare Decisis). It is more likely that their ruling could decide that certain aspects of prior case decisions were incorrect OR that states can restrict abortions at their level OR both. For this reason, all abortions will probably not suddenly stop nation-wide, but they could be dramatically curtailed immediately. It is anticipated that a large amount of litigation would follow such a SCOTUS decision, possibly preventing some state actions going into effect until decided by the court system (i.e., enjoined). Note that 15 states and the District of Columbia already have laws in place that would permit abortions even if Roe were overturned.
 
So what would happen in North Dakota? Don’t we have a “Trigger Law”?Yes, our state has a trigger law, as do 11 other states. The law (ND Trigger Law) states says that if SCOTUS rules in such a way that our Attorney general determines, “it is reasonably probable that this Act would be upheld as constitutional”, then the trigger law would go into effect and abortions would be illegal in North Dakota. It would make exceptions for protecting the life of the mother or if the pregnancy resulted from “sexual imposition, sexual abuse of a ward, or incest”.
 
What about all our existing abortion laws? Because we have a trigger law that would ban almost all abortions after Roe, North Dakota’s other, most lesser limitations and regulations on abortions currently in law would no longer be necessary. 
 
When will Dobbs be argued before the Supreme Court and ruled on? The case is being argued tomorrow before the Supreme Court. A ruling is not expected prior to June 2022, when most SCOTUS rulings are filed.
 
Does this relate to the Texas case I heard about? They are similar in that they limit abortions, but they go about it in very different ways. The Texas law bans abortions as early as 6 weeks and leaves enforcement to private citizens, who can sue doctors or anyone else who performs or directly helps procure an abortion. SCOTUS has not blocked the Texas law for now, but has not heard arguments or officially ruled on it, so its future is unknown. Now Dobbs is taking the spotlight. Many other states are looking into enacting similar laws to the one in Texas, particularly if Dobbs is unsuccessful.
 
What can we do? Pray, and get others to pray as well! Dobbs is significant in the overall mess the court system has made of the abortion issue and its history of bad decisions. It is fundamentally asking for a rollback of Roe and is the most sweeping piece of legislation SCOTUS has seen in quite a while. We pro-life advocates want to seize this opportunity. The legal case has been submitted, the case argued before SCOTUS tomorrow, so now it’s up to us to pray for a favorable outcome. 
 
Final Note: North Dakota Family Alliance plans to host a roundtable in January on Abortion in North Dakota. We will discuss existing abortion laws, extensively address the Dobbs and Texas cases, and focus on what all this means for North Dakota. Presenters will include policy experts from DC to provide context, legal experts on ND abortion law, individuals involved with of ND pregnancy clinics, and others who can provide a comprehensive perspective on this important case. We will give you more details as we get closer. You won’t want to miss this!