23.9341.

01000

August 1, 2022

Honorable Drew H. Wrigley

Attorney General
State Capitol
Bismarck, ND 58505

Dear Attorney General Wrigley:

On June 24, 2022, the United States Supreme Court issued its decision in Dobbs v. Jackson Women's
Health Organization holding the Constitution does not confer a right to abortion, overturning Roe v. Wade
and Planned Parenthood of Southeastern Pa. v. Casey. The Supreme Court's ruling in Dobbs appears to
have triggered two statutory provisions to become effective in North Dakota. The two provisions are North
Dakota Century Code Sections 12.1-31-12 and 14-02.1-04.2, which prohibit abortion and "human
dismemberment abortion," respectively. Sections 12.1-31-12 and 14-02.1-04.2 had contingent effective
dates that were triggered by certification from you that the Supreme Court overturned Roe v. Wade. The
Legislative Council received a revised certification on July 27, 2022, triggering Sections 12.1-31-12 and
14-02.1-04.2 to become effective on August 26, 2022.

The triggering of Sections 12.1-31-12 and 14-02.1-04.2, in conjunction with various statutory abortion-
related provisions such as North Dakota's Abortion Control Act, codified as Chapter 14-02.1, presents
some conflicts, confusion, and potentially unintended consequences. The Legislative Assembly cannot
correct or shed light on the operation or status of the state's statutory abortion provisions until the 2023
legislative session. As a result, the state's legal community, health care community, and the general
public are left in a state of confusion and uncertainty as to which abortion requirements, prohibitions,
restrictions, and penalties are applicable in certain medical situations. For this reason, we respectfully
request your expedited opinion as to:
1. Whether the newly effective prohibition on abortion in Section 12.1-31-12 or the Abortion Control
Act is the controlling authority in regard to the performance of an abortion where any conflict exists
between the two provisions.
2. Whether a physician treating an ectopic pregnancy can be prosecuted for a Class C felony under
Section 12.1-31-12 when the treatment of an ectopic pregnancy is excluded from the definition of
abortion under the Abortion Control Act but is not excluded from the definition of abortion under
Section 12.1-31-12. If so, whether a physician prosecuted for a Class C felony for treating an
ectopic pregnancy under Section 12.1-31-12 would be required to present the affirmative defense
that the abortion was to prevent the death of the pregnant woman in order to negate criminal
liability after being criminally charged.
3. Whether the affirmative defenses provided for a violation of Section 12.1-31-12 may be evaluated
by the court as a matter of law before trial or whether the assertion of an applicable affirmative
defense is purely a question of fact to be determined by the jury. What is the defendant's burden of
proof when raising an affirmative defense under Section 12.1-31-12?
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4. Whether state or federal law precludes a defendant raising an affirmative defense from presenting
a patient's private health information in attempting to meet the defendant's burden of proof. If so,
does current law have any waivers allowing for a defendant to subpoena such information and
introduce it as evidence?
5. Whether the Abortion Control Act allows a physician to be criminally prosecuted for terminating a
pregnancy that resulted from gross sexual imposition or incest.
6. Whether the Abortion Control Act requires a physician who is performing an abortion on a married
woman who was the victim of gross sexual imposition by their spouse or another individual to
receive the spouse's or other individual's consent to the abortion before the abortion can be
performed.
7. Whether the Attorney General has authority to prosecute alleged violations of the Abortion Control
Act or Section 12.1-31-12 if a state's attorney having jurisdiction over the alleged violation declines
to prosecute.
8. Whether a physician may perform an abortion at any stage of a pregnancy if necessary to
safeguard the pregnant woman's health, and if so, under what circumstances. Does the health of
the pregnant woman include psychological and emotional conditions as well as physical
conditions?
9. Whether the heartbeat provisions contained in Sections 14-02.1-05.1 and 14-02.1-05.2, which
previously were declared unconstitutional, are or will become effective.

Sincerely,

Representative Karla Rose Hanson

District 44

Representative Zachary Ista

District 43

CSJ/RWT