In a jurisprudential development that underscores the precarious nature of state constitutional protections, the North Dakota Supreme Court has upheld a strict abortion ban through a procedural mechanism that allows a minority of justices to dictate constitutional law. In the recently decided Access Independent Health Services v. Wrigley, issued in late November 2025, the court’s final judgment upheld a statute criminalizing abortion despite three of the five justices concluding that the ban violated state due process rights. This counter-majoritarian outcome is the result of a specific state rule requiring a supermajority—four out of five justices—to declare a legislative act unconstitutional. Consequently, the dissenting opinion of just two justices has become the controlling law of the state, effectively neutralizing the constitutional reasoning of the court’s majority.
The statute in question imposes severe criminal penalties, including up to five years in prison and fines of $10,000, on any individual performing an abortion not deemed necessary by “objective reasonable medical judgment” to prevent death or a “serious health risk.” The three-justice majority found this provision unconstitutionally vague, arguing that the statute failed to provide clear standards for when a provider could lawfully intervene to protect a patient’s health. They reasoned that the “objective reasonableness” standard, combined with the threat of harsh criminal sanctions, created an unquestionable chilling effect, deterring constitutionally protected medical care. The majority further noted that extensive record evidence demonstrated significant confusion among healthcare providers—and even state witnesses—regarding the definition of a “serious health risk,” thereby jeopardizing the fundamental rights of pregnant individuals to life, safety, and health.
However, the controlling opinion, authored by the two dissenting justices, rejected the vagueness challenge and anchored its holding in a strict originalist interpretation of the North Dakota Constitution. Mirroring the methodology articulated by the U.S. Supreme Court in Dobbs v. Jackson Women’s Health Organization, the dissent defined the scope of state rights based on the understanding of the “enacting public” at the time of North Dakota’s statehood in 1889. By prioritizing historical statutes that criminalized abortion in the late 19th century, the dissent concluded that the state constitutional guarantees of “defending life” and “obtaining safety” must be construed narrowly. They cited a 1900 decision to suggest that the right to terminate a pregnancy historically existed only as a “last resort” for survival, explicitly disregarding the broader protections for health and procreative autonomy recognized by the majority.
This decision represents a significant retrenchment from the court’s own recent jurisprudence, specifically the 2023 ruling in Wrigley v. Romanick, which had affirmed a preliminary injunction against a prior version of the ban. In that earlier phase, the court had indicated that the state’s natural rights provisions implicitly included a right to abortion to preserve a pregnant person’s life or health, consistent with historical medical practices. The recent reversal in Access Independent Health Services not only deflates that progressive momentum but also isolates North Dakota from other state high courts—such as those in Kansas, Pennsylvania, and Utah—which have utilized historical evidence as a starting point rather than a rigid constraint. The controlling dissent in North Dakota instead aligns its reasoning with a historical period wherein women were excluded from political participation, a methodological choice that critics argue embeds historical gender injustices into modern constitutional interpretation.
Ultimately, the ruling illustrates the potent combination of originalist hermeneutics and supermajority requirements in state courts. While the majority of the bench sought to apply the principle of constitutional avoidance to protect patients from ambiguous criminal statutes, the procedural threshold allowed a history-focused minority to enforce a ban that many providers find unworkable in practice. As it stands, pregnant individuals in North Dakota face a legal landscape where exceptions to the abortion ban remain dangerously ambiguous, a reality that the majority warned could lead to the delay or denial of critical health-preserving care. This decision serves as a stark reminder that even when a judicial majority recognizes that constitutional traditions require the protection of reproductive rights, procedural structures and originalist frameworks can operate to revive and entrench the statutory restrictions of the past.
