d/b/a Red River Women’s Clinic, et al. v. Wrigley

majority opinion

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2025 ND 199

Access Independent Health Services, Inc.,

d/b/a Red River Women’s Clinic, on

behalf of itself and its patients; Kathryn L.

Eggleston M.D., on behalf of herself and

her patients; Ana Tobiasz, M.D. on behalf

of herself and her patients; Erica Hofland,

M.D. on behalf of herself and her

patients; Collette Lessard, M.D. on behalf

of herself and her patients, Plaintiffs and Appellees

Drew H. Wrigley, in his official capacity

as Attorney General for the State of North

Dakota; Defendant and Appellant

and

Kimberlee Jo Hegvik, in her

official capacity as the State’s Attorney

for Cass County; Julie Lawyer, in her

official capacity as the State’s Attorney

for Burleigh County; Amanda Engelstad,

in her official capacity as State’s Attorney

for Stark County; and Haley Wamstad, in

her official capacity as the State’s

Attorney for Grand Forks County, Defendants

No. 20240291

Appeal from the District Court of Burleigh County, South Central Judicial

District, the Honorable Bruce A. Romanick, Judge.

REVERSED.

Per Curiam.

Meetra Mehdizadeh (argued), New York, NY, and Zhuya B. Lu (appeared),

Washington, D.C., and Christina A. Sambor (appeared), Bismarck, ND, for

plaintiffs and appellees.

Philip J. Axt, Solicitor General (argued) and Courtney R. Titus, Assistant

Attorney General (on brief), Bismarck, ND, and Daniel L. Gaustad (appeared),

Joseph E. Quinn and Marcus C. Skonieczny (on brief), Special Assistant

Attorneys General, Grand Forks, ND, for defendant and appellant.

Christopher T. Dodson, Bismarck, ND, for amicus curiae North Dakota Catholic

Conference.

Bradley N. Wiederholt, Bismarck, ND, and April S. Wood, Bryan, TX, for amicus

curiae 40 Days for Life.

Zachary Tomczik, Grand Forks, ND, and Elizabeth B. Wydra, Brianne J. Gorod,

David H. Gans, Miriam Becker-Cohen, Nargis Aslami, Washington, D.C., for

amicus curiae Constitutional Accountability Center.

Kylie Oversen, Fargo, ND, and Molly A. Meegan, Carrie Flaxman and Alethea

A. Swift, Washington, D.C., for amicus curiae The American College of

Obstetricians and Gynecologists, Society for Maternal-Fetal Medicine, and

Society of Family Planning.

Joel M. Fremstad, Fargo, ND, and Jayme Jonat and Monica L. Coscia, New York,

NY, amicus curiae Medical Students for Choice.

Dane DeKrey, Moorhead, MN, for amicus curiae Eileen McDonagh, Linda

McClain and James Fleming.

Access Independent Health Services, Inc.,

d/b/a Red River Women’s Clinic, et al. v. Wrigley

No. 20240291

Per curiam.

[¶1] “[T]he supreme court shall not declare a legislative enactment

unconstitutional unless at least four of the members of the court so decide.” N.D. Const. art. VI, § 4. Justice Crothers, joined by Justice McEvers and District Judge Narum, concluded N.D.C.C. ch. 12.1-19.1 is unconstitutionally vague under

article I, § 12 of the North Dakota Constitution. Justice Tufte, joined by Chief Justice Jensen, concluded N.D.C.C. ch. 12.1-19.1 is not unconstitutional under either article I, § 1 or article I, § 12 of the North Dakota Constitution. The effect of the separate opinions in this case is that N.D.C.C. ch. 12.1-19.1 is not declared unconstitutional by a sufficient majority and that the district court judgment declaring N.D.C.C. ch. 12.1-19.1 unconstitutional and void is reversed. See MKB Mgmt. Corp v. Burdick, 2014 ND 197, ¶ 1, 855 N.W.2d 31 (judgment enjoining

enforcement of law reversed after the Court did not reach a sufficient majority to declare the law unconstitutional).

[¶2] Jon J. Jensen, C.J.

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte

Daniel D. Narum, D.J.

[¶3] The Honorable Daniel D. Narum, D.J., sitting in place of Bahr, J.,

disqualified.

Crothers, Justice.

[¶4] The State appeals from a judgment declaring N.D.C.C. ch. 12.1-19.1

violates the North Dakota Constitution. The district court did not err when it decided the law, which criminalizes abortion with exceptions, is

unconstitutionally vague. The vagueness in the law relates to when an abortion can be performed to preserve the life and health of the mother. After striking this invalid provision, the remaining portions of the law would be inoperable.

Because the unconstitutional part of the law cannot be severed from the rest,

N.D.C.C. ch. 12.1-19.1 would be invalid in its entirety. We would affirm the

district court’s judgment on these grounds only and decline to address the

remaining questions.

[¶5] The Plaintiffs are a healthcare clinic and doctors who provide medical

care that includes aborting pregnancies. It is undisputed that pregnancy has the potential to jeopardize the safety of the mother and an abortion may be necessary to preserve her life and health under some circumstances. It is also undisputed that the plaintiff-physicians have the training and licensure necessary to provide medical care in this context.

[¶6] Dr. Jerry Obritsch, an obstetrician and one of the State’s expert witnesses, provided undisputed testimony about various health conditions expectant

mothers in North Dakota experience. These clinical (not hypothetical)

experiences include preterm premature rupture of membranes (PPROM);

ascending chorioamnionitis; gestational diabetes; maternal hypertension;

preeclampsia; hemolysis, elevated liver enzymes, and low platelets (HELLP

syndrome); placenta previa; factor V Leiden; and hyperemesis gravidarum. Dr.

Obritsch noted other conditions may preexist the pregnancy and complicate it,

including cancer, kidney disease, and lupus. He explained these conditions all increase expectant mothers’ risk of mortality. Among other symptoms, he

testified these conditions may affect the functioning of the mother’s organs and cause hemorrhaging, blood clots and seizures. For example, he described

ascending chorioamnionitis, a complication of PPROM, as:

[A]n ascending infection when the amniotic membranes are released

and as a result, there’s a direct communication between the vagina

and the uterus. And the vagina, just like our skin, has millions of

bacteria, and they ascend into the intrauterine cavity and cause a

significant infection to occur, which then can cross into the blood

stream, causing maternal sepsis and death.

Dr. Obritsch noted this was an infection that can develop quickly, “[w]ithin

hours to days.”

[¶7] Dr. Obritsch testified that it may be difficult to predict whether, and to what extent, an expectant mother’s life and health is in jeopardy. For example, placenta previa is a condition where the placenta attaches low in the uterus. The condition can result in severe bleeding. Accurately determining if and when lifethreatening bleeding will occur is difficult. Dr. Obritsch explained:

Q. . . . Can you diagnose the likelihood of torrential hemorrhage as

a result of placental previa before it happens?

A. Generally not. The patient may present with some vaginal

spotting, but typically that’s the only warning that we have

regarding placenta previa abrupting, moving away, separating,

with torrential onset of hemorrhage.

Q. And between the diagnosis of placenta previa and torrential

hemorrhage, how much time usually passes?

A. Minutes to hours to days to weeks.

Q. Is there any way to predict how much time will elapse between a

patient that’s diagnosed with placenta previa and torrential

hemorrhage?

A. There is not.

Q. And what are the consequences of torrential hemorrhage?

A. Maternal death.

Q. Are there situations where torrential hemorrhage does not result

in maternal death?

A. Yes. With emergency surgical intervention, the mother’s life can

be saved.

Q. And how quickly does that emergency surgical intervention need

to be offered for a patient suffering from torrential hemorrhage?

A. ASAP. This is an obstetrical emergency that time is of the essence

when a torrential hemorrhage occurs. As soon as possible.

Q. And how soon, generally? . . .

A. Minutes. Minutes. Minutes. Absolute minutes. Because the

mother can literally bleed to death.

[¶8] Consistent with Dr. Obritsch’s testimony, this Court has acknowledged

the “grave risks to health” pregnant patients face. See Wrigley v. Romanick, 2023 ND 50, ¶ 31, 988 N.W.2d 231 (Wrigley I). We explained the “severe

complications” expectant mothers “routinely” present with at emergency rooms:

The patient might be spiking a fever, experiencing uterine cramping

and chills, contractions, shortness of breath, or significant vaginal

bleeding. The ER physician may diagnose her with, among other

possibilities, traumatic placental abruption, preeclampsia, or a

preterm premature rupture of the membranes. In those situations,

the physician may be called upon to make complex, difficult

decisions in a fast-moving, chaotic environment. She may conclude

that the only way to prevent serious harm to the patient or save her

life is to terminate the pregnancy—a devastating result for the

doctor and the patient.

Yet if the physician does not perform the abortion, the pregnant

patient faces grave risks to her health—such as severe sepsis

requiring limb amputation, uncontrollable uterine hemorrhage

requiring hysterectomy, kidney failure requiring lifelong dialysis,

hypoxic brain injury, or even death. And this woman, if she lives,

potentially may have to live the remainder of her life with significant

disabilities and chronic medical conditions as a result of her

pregnancy complication.

Id. (quoting United States v. Idaho, 623 F. Supp. 3d 1096, 1101 (D. Idaho 2022)).

[¶9] The North Dakota legislature enacted N.D.C.C. ch. 12.1-19.1 after we

denied a writ to vacate the district court’s preliminary injunction of an earlier abortion regulation. See Wrigley I, 2023 ND 50. The Plaintiffs, on behalf of

themselves and their patients, filed an amended complaint challenging the

constitutionality of N.D.C.C. ch. 12.1-19.1, which provides in full:

CHAPTER 12.1-19.1

ABORTION

12.1-19.1-01. Definitions.

As used in this chapter:

1. “Abortion” means the act of using, selling, or prescribing any

instrument, medicine, drug, or any other substance, device, or

means with the intent to terminate the clinically diagnosable

pregnancy of a woman, including the elimination of one or

more unborn children in a multifetal pregnancy, with

knowledge the termination by those means will with

reasonable likelihood cause the death of the unborn child. The

use, sale, prescription, or means is not an abortion if done with

the intent to:

a. Remove a dead unborn child caused by spontaneous

abortion;

b. Treat a woman for an ectopic pregnancy; or

c. Treat a woman for a molar pregnancy.

2. “Physician” means an individual licensed to practice

medicine or osteopathy under chapter 43-17 or a physician

who practices in the armed services of the United States or in

the employ of the United States.

3. “Probable gestational age of the unborn child” means what, in

reasonable medical judgment, will with reasonable

probability be the gestational age of the unborn child.

4. “Reasonable medical judgment” means a medical judgment

that would be made by a reasonably prudent physician who

is knowledgeable about the case and the treatment

possibilities with respect to the medical conditions involved.

5. “Serious health risk” means a condition that, in reasonable

medical judgment, complicates the medical condition of the

pregnant woman so that it necessitates an abortion to prevent

substantial physical impairment of a major bodily function,

not including any psychological or emotional condition. The

term may not be based on a claim or diagnosis that the woman

will engage in conduct that will result in her death or in

substantial physical impairment of a major bodily function.

12.1-19.1-02. Abortion prohibited – Penalty.

It is a class C felony for a person, other than the pregnant female

upon whom the abortion was performed, to perform an abortion.

12.1-19.1-03. Exceptions.

This chapter does not apply to:

1. An abortion deemed necessary based on reasonable medical

judgment which was intended to prevent the death or a

serious health risk to the pregnant female.

2. An abortion to terminate a pregnancy that based on

reasonable medical judgment resulted from gross sexual

imposition, sexual imposition, sexual abuse of a ward, or

incest, as those offenses are defined in chapter 12.1-20, if the

probable gestational age of the unborn child is six weeks or

less.

3. An individual assisting in performing an abortion if the

individual was acting within the scope of that individual’s

regulated profession, was under the direction of or at the

direction of a physician, and did not know the physician was

performing an abortion in violation of this chapter.

[¶10] The Plaintiffs brought two claims. The first is that N.D.C.C. ch. 12.1-19.1 violates the physicians’ right to due process under N.D. Const. art. I, § 12 because it is unconstitutionally vague. Article I, § 12, prohibits the government from depriving any person “of life, liberty, or property without due process of law.” Among other assertions, the Plaintiffs allege the statute infringed their right to

due process when it was enacted by failing to use language sufficient to provide notice of when they may perform an abortion to protect their patients’ health. They argue this unclear language, coupled with the law’s felony penalties for

non-compliance, deters the provision of constitutionally protected medical care.

[¶11] The Plaintiffs’ second claim alleges the law violates pregnant women’s

right to life and health preserving care under N.D. Const. art. I, § 1, which states:

All individuals are by nature equally free and independent and have

certain inalienable rights, among which are those of enjoying and

defending life and liberty; acquiring, possessing and protecting

property and reputation; pursuing and obtaining safety and

happiness; and to keep and bear arms for the defense of their person,

family, property, and the state, and for lawful hunting, recreational,

and other lawful purposes, which shall not be infringed.

The Plaintiffs claim this constitutional provision guarantees the right to an

abortion under various circumstances, including contexts relating to mental

health conditions and when a pregnancy will not create sustainable life after

birth.

[¶12] The State moved for summary judgment. The Plaintiffs opposed the

motion arguing there were unresolved issues of fact and the case should proceed to trial. The district court issued an order for summary judgment in favor of the Plaintiffs. The court decided the law was unconstitutionally vague, explaining:

On its face, before even considering potential as-applied challenges,

the law is confusing and vague. As written, it can have a profound

chilling effect on the willingness of physicians to perform abortions,

even where the North Dakota Supreme Court has already said there

is a fundamental right to do so to preserve a woman’s life or health.

The Court concludes the law is impermissibly vague on its

face, and as currently written it threatens to inhibit the exercise of

constitutionally protected rights for both North Dakota physicians

and North Dakota patients.

The court also decided the law violated the rights of pregnant women under

N.D. Const. art. I, § 1. The court entered judgment stating:

a. The abortion statutes at issue in this case infringe on a woman’s

fundamental right to procreative autonomy, and are not narrowly

tailored to promote women’s health or to protect unborn human life.

The law as currently drafted takes away a woman’s fundamental

rights to liberty and her fundamental right to pursue and obtain

safety and happiness. The law also impermissibly infringes on the

constitutional rights for victims of crimes. Therefore Chapter 12.1-19.1, N.D.C.C. is unconstitutional.

b. The Court concludes Chapter 12.1-19.1, N.D.C.C., violates the

Constitution of the State of North Dakota and is void for vagueness

and of no effect.

The State appealed and sought a stay from this Court, which was denied in Access Independent Health Services., Inc. v. Wrigley, 2025 ND 26, 16 N.W.3d 902 (Wrigley II). The merits of the State’s appeal now are before us for consideration.

[¶13] Resolution of the appeal turns on a series of questions. First, do we have a standard for facial vagueness challenges that preliminarily bars the Plaintiffs’ claim? If not, does the legislation contain unconstitutional vagueness? And if it does, can the vague parts of the law be severed from the rest? We take each of these questions in turn, but first set out our well established standard for

reviewing appeals of summary judgment:

Summary judgment is a procedural device for the prompt resolution

of a controversy on the merits without a trial if there are no genuine

issues of material fact or inferences that can reasonably be drawn

from undisputed facts, or if the only issues to be resolved are

questions of law. A party moving for summary judgment has the

burden of showing there are no genuine issues of material fact and

the moving party is entitled to judgment as a matter of law. In

determining whether summary judgment was appropriately

granted, we must view the evidence in the light most favorable to

the party opposing the motion, and that party will be given the

benefit of all favorable inferences which can reasonably be drawn

from the record. On appeal, this Court decides whether the

information available to the district court precluded the existence of

a genuine issue of material fact and entitled the moving party to

judgment as a matter of law. Whether the district court properly

granted summary judgment is a question of law which we review

de novo on the entire record.

Higgins v. Lund, 2025 ND 47, ¶ 28, 17 N.W.3d 828 (quoting Johnson v. Shield, 2015 ND 200, ¶ 6, 868 N.W.2d 368). In resolving the issues here under the summary

judgment posture and standard, we rely only on facts as presented by the State or its expert witnesses.

III

[¶14] The government may not deprive any person of life, liberty, or property

without due process of law. N.D. Const. art. I, § 12. The principle that a vague law is void flows from this due process guarantee. Interest of D.D., 2018 ND 201, ¶ 7, 916 N.W.2d 765. A law is vague if it fails to give fair warning or allows for discriminatory enforcement. City of Fargo v. Roehrich, 2021 ND 145, ¶ 6, 963

N.W.2d 248. “Vague laws may trap the innocent because they fail to provide

adequate warning of what conduct is prohibited, and they may result in arbitrary and discriminatory application because a vague law delegates basic policy

matters to those who apply the law, allowing the law to be applied on an ad hoc and subjective basis.” State v. Holbach, 2009 ND 37, ¶ 24, 763 N.W.2d 761.

[¶15] To survive a vagueness challenge, laws require a degree of specificity:

A law is not unconstitutionally vague if: (1) the law creates

minimum guidelines for the reasonable police officer, judge, or jury

charged with enforcing the law, and (2) the law provides a

reasonable person with adequate and fair warning of the prohibited

conduct. A law is not unconstitutionally vague if the challenged

language, when measured by common understanding and practice,

gives adequate warning of the conduct proscribed and marks

boundaries sufficiently distinct for fair administration of the law.

State v. Moses, 2022 ND 208, ¶ 17, 982 N.W.2d 321 (cleaned up). The amount of

specificity required depends on the scope of the law and the type of conduct at issue. Olson v. City of West Fargo, 305 N.W.2d 821, 829 (N.D. 1981); see also Texas Dep’t of Ins. v. Stonewater Roofing, Ltd. Co., 696 S.W.3d 646, 660 (Tex. 2024) (stating the degree of vagueness that will be tolerated “depends in part on the nature of the enactment”); Bartlow v. Costigan, 13 N.E.3d 1216, 1225 (Ill. 2014) (stating the “test for determining vagueness varies with the nature and context of the

legislative enactment”). We agree with the Colorado Supreme Court when it

explained:

[T]he strictness of the vagueness test depends on whether the

challenged law threatens to inhibit the exercise of constitutionally

protected rights. When such constitutionally protected behavior

may be inhibited, a greater degree of specificity is required than

when a law does not implicate constitutionally protected liberties.

Robertson v. City & County of Denver, 874 P.2d 325, 334 (Colo. 1994) (en banc) (citations omitted); see also Colautti v. Franklin, 439 U.S. 379, 391 (1979) (stating the principle that vague laws are void is “especially true where the uncertainty induced by the statute threatens to inhibit the exercise of constitutionally

protected rights”).

[¶16] The severity of a law’s punishment also affects the degree of specificity required. Less specificity is constitutionally permitted when a statute imposes civil penalties, Stonewater Roofing, 696 S.W.3d at 661, while more specificity is required when a statute imposes criminal penalties, Bartlow, 13 N.E.3d at 1225. See also Frese v. Formella, 53 F.4th 1, 6 (1st Cir. 2022) (stating “‘if criminal penalties may be imposed for violations of a law, a stricter standard is applied in

reviewing the statute for vagueness’”) (quoting Manning v. Caldwell for City of Roanoke, 930 F.3d 264, 272-73 (4th Cir. 2019)); State v. Cobb, 969 P.2d 244, 247 (Idaho 1998) (stating vagueness challenges are “more favorably acknowledged

and a more stringent vagueness test will be applied where a statute imposes a

criminal penalty”).

[¶17] The State argues that allowing the Plaintiffs to bring their facial

vagueness claim “would be a significant change to how this Court has long

adjudicated facial vagueness challenges” amounting to an “abortion-related

distortion” of the Court’s jurisprudence. The State asserts, “Outside of the First Amendment, vagueness challenges are generally only appropriate on an asapplied basis, because to facially strike down a statute for any other type of claim there must not be a single instance where the statute can provide an

understandable core of conduct.” The State argues that N.D.C.C. ch. 12.1-19.1

cannot be facially vague because “there are numerous scenarios” where the law

would clearly allow abortions, “such as where the patient is suffering from

hemorrhaging,” and there are “also clearly scenarios where performing an

abortion would not be permissible” such as when there are “no medical

complications at all.”

[¶18] The distinction between an as-applied challenge and a facial challenge

relates to the breadth of the requested relief. Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 331 (2010). An as-applied challenge seeks relatively narrow relief in the form of a declaration that a law is “unconstitutional in a particular case.” SCS Carbon Transp. LLC v. Malloy, 2024 ND 109, ¶ 8, 7 N.W.3d 268. A facial challenge asks the court to provide the broader remedy of declaring the

legislature “exceeded a constitutional limitation” when it enacted a law. Sorum v. State, 2020 ND 175, ¶ 21, 947 N.W.2d 382. The result of a declaration that a law is facially unconstitutional is to treat the law “as if it were never enacted.” Id. The difference between facial and as-applied challenges is “not so well defined that it has some automatic effect.” Citizens United, at 331. Regardless of the type of claim at issue, we decide constitutional questions on the narrowest grounds possible. SCS Carbon Transp., ¶ 7.

[¶19] Both this Court and the United States Supreme Court have issued

decisions refining the burden required to successfully mount a facial challenge. See generally Northwest Landowners Assoc. v. State, 2022 ND 150, ¶ 14, 978 N.W.2d 679. In earlier cases this Court applied a rule requiring “the challenger to

establish that no set of circumstances exists under which the statute would be valid.” Larimore Pub. School Dist. No. 44 v. Aamodt, 2018 ND 71, ¶ 38, 908 N.W.2d 442. This rule had origins in federal jurisprudence, and in the context of facial vagueness challenges specifically, a leading case was Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982).

[¶20] Hoffman Estates dealt with a pre-enforcement facial vagueness challenge

to a law regulating the sale of drug paraphernalia. 455 U.S. at 491. The Supreme Court explained, “perhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights.” Id. at 499. “If, for example, the law interferes with the right of free speech or of association, a more stringent vagueness test should apply.” Id. The Supreme Court noted the regulation in question did not

implicate the challengers’ First Amendment rights, but it “may nevertheless be challenged on its face as unduly vague, in violation of due process.” Id. at 497. The Court announced that to succeed the challengers “must demonstrate that the law is impermissibly vague in all of its applications.” Id. The Court upheld the law noting it “simply regulates business behavior,” id. at 499, and “is reasonably clear in its application to the complainant.” Id. at 505. See also United States v. Salerno, 481 U.S. 739, 745 (1987) (stating in a different context that a facial challenge “must establish that no set of circumstances exists under which the Act would be valid”).

[¶21] The Supreme Court later distinguished vagueness claims related to

constitutionally protected conduct from claims challenging general economic

regulations in City of Chicago v. Morales, 527 U.S. 41 (1999). The case dealt with a facial vagueness challenge to a law prohibiting gang members from loitering in public places. Id. at 45-46. The Supreme Court noted the law did not impair the challengers’ First Amendment rights because the loitering restriction “does not prohibit any form of conduct that is apparently intended to convey a message.” Id. at 53. However, the Court explained the right to move freely in public is a constitutionally protected liberty interest. Id. at 53-54. The Court noted that, unlike the economic regulation in Hoffman Estates, the criminal loitering

ordinance did not regulate business activity, and “[w]hen vagueness permeates

the text of such a law, it is subject to facial attack.” Id. at 55. The Court declared

the law void for vagueness on its face reasoning it “affords too much discretion to the police and too little notice to citizens who wish to use the public streets.” Id. at 64.

[¶22] The Second Circuit Court of Appeals analyzed these decisions while

addressing the question of whether a facial vagueness challenge could be

maintained outside the First Amendment context. See Dickerson v. Napolitano, 604 F.3d 732 (2d Cir. 2010). The court explained there are “two potential standards that may govern non-First Amendment vagueness challenges.” Id. at 743.

The first possible standard for evaluating facial challenges

outside of the First Amendment context is that such challenges are

permitted only when “no set of circumstances exists under which

the law would be valid.” United States v. Salerno, 481 U.S. 739, 745,

107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987); accord Village of Hoffman

Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497, 102 S. Ct.

1186, 71 L. Ed. 2d 362 (1982) (“To succeed in a vagueness challenge,

the complainant must demonstrate that the law is impermissibly

vague in all of its applications.”). This standard effectively

eliminates facial challenges outside of the First Amendment context

that could not also be brought as an as-applied challenge, since any

law that is unconstitutional in every set of circumstances is also

necessarily unconstitutional when applied to any plaintiff. . . .

The second potential standard comes from Morales, where the

Supreme Court expressed some skepticism about the

Salerno/Hoffman Estates standard and upheld a facial vagueness

challenge to an anti-loitering statute with no First Amendment

implications. See Morales, 527 U.S. at 55 n. 22, 119 S. Ct. 1849

(Stevens, J., plurality opinion). Morales does suggest that facial

challenges are permissible outside of the First Amendment context,

but that case only permitted such a challenge in the presence of a

constitutionally-protected right. See Morales, 527 U.S. at 53, 119 S. Ct.

1849 (Stevens, J., plurality opinion) (“The freedom to loiter for

innocent purposes is part of the ‘liberty’ protected by the Due

Process Clause.”); id. at 55, 119 S. Ct. 1849 (stating that vague

criminal laws that lack a mens rea requirement and infringe on

constitutionally-protected rights are “subject to facial attack”). We

are aware of no court that has read Morales so broadly as to permit

facial challenges where no constitutional right is implicated.

Dickerson, at 743-44 (cleaned up). The court did not decide which standard to

apply because the challenger could not meet either. Id. at 744 (explaining the plaintiffs’ claim “does not implicate any non-First Amendment constitutional

right”).

[¶23] In 2015, the Supreme Court expressly addressed the issue in Johnson v.

United States, 576 U.S. 591 (2015). The question was whether the residual clause of the Armed Career Criminal Act, which does not regulate speech or religion, is unconstitutionally vague. Id. at 593. A majority of the Supreme Court joined an opinion authored by Justice Scalia holding that it was. Id. at 606. The Supreme Court explained a law need not be vague in every application to violate due

process:

In all events, although statements in some of our opinions

could be read to suggest otherwise our holdings squarely contradict

the theory that a vague provision is constitutional merely because

there is some conduct that clearly falls within the provision’s grasp.

For instance, we have deemed a law prohibiting grocers from

charging an “unjust or unreasonable rate” void for vagueness—even

though charging someone a thousand dollars for a pound of sugar

would surely be unjust and unreasonable. We have similarly

deemed void for vagueness a law prohibiting people on sidewalks

from “conducting themselves in a manner annoying to persons

passing by”—even though spitting in someone’s face would surely

be annoying.

Id. at 602 (cleaned up).1

1 The dissent declares the United States Supreme Court has never decided a law was facially void for

vagueness in a pre-enforcement challenge. Tufte, J., dissenting opinion, at ¶ 134. That declaration overlooks Colautti, 439 U.S. at 397, where the Supreme Court struck down an abortion regulation subjecting physicians to criminal penalties explaining it “could have a profound chilling effect on the willingness of physicians to perform abortions near the point of viability in the manner indicated by their best medical judgment.” The ultimate holding but not the reasoning in Colautti was abrogated by Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), due to that decision’s overruling of Roe v. Wade, 410 U.S. 113 (1973).

[¶24] We recently took note of the changed federal jurisprudence in Northwest

Landowners. We acknowledged we previously applied the “no set of

circumstances” standard, but explained:

However, since Salerno, other courts have declined to apply that

standard to facial challenges. Utah Pub. Emps. Ass'n v. State, 2006

UT 9, ¶¶ 20-25, 131 P.3d 208 (rejecting application of Salerno in a

facial takings challenge and collecting supporting cases). The

Supreme Court has also declined to apply Salerno in subsequent

decisions considering facial challenges. City of Chicago v. Morales, 527

U.S. 41, 55, 119 S. Ct. 1849, 144 L. Ed. 2d 67 (1999) (“To the extent we

have consistently articulated a clear standard for facial challenges,

it is not the Salerno formulation, which has never been the decisive

factor in any decision of this Court, including Salerno itself.”).

2022 ND 150, ¶ 14. Speaking in general terms, we clarified: “No consideration of circumstances is necessary to resolve a facial challenge because the claim is that upon enactment, the legislation has an immediate unconstitutional legal effect.” Id.; see also Sorum, 2020 ND 175, ¶ 21 (explaining a “violation that occurs at the time of enactment does not depend on any facts or circumstances arising later”). Although we rejected the “no set of circumstances” standard in Northwest

Landowners, the case did not concern a facial vagueness challenge.

[¶25] The present case directly confronts us with the question of whether a

plaintiff advancing a facial vagueness challenge to a law implicating a non-First Amendment constitutional right must satisfy the “no set of circumstances”

standard. This Court has not directly addressed the issue. Two lines of cases exist in this jurisdiction—one where we have applied the standard and one where we

have not.

[¶26] We collected cases deciding whether laws were void for vagueness on

their face without reference to the “no set of circumstances” standard in Wrigley II, 2025 ND 26, ¶ 23:

See, e.g., [State v.] Moses, 2022 ND 208, ¶ 17, 982 N.W.2d 321

(possession of firearms by felons); State v. Kordonowy, 2015 ND 197,

¶ 19, 867 N.W.2d 690 (refusal to submit to chemical testing); Simons

v. Dep't of Human Servs., 2011 ND 190, ¶ 31, 803 N.W.2d 587 (child

abuse); State v. Brown, 2009 ND 150, ¶ 35, 771 N.W.2d 267 (dog

barking ordinance); City of Fargo v. Salsman, 2009 ND 15, ¶ 23, 760

N.W.2d 123 (nuisance); City of Minot v. Boger, 2008 ND 7, ¶ 7, 744

N.W.2d 277 (zoning ordinance); [City of Belfield v.] Kilkenny, 2007 ND

44, ¶ 28, 729 N.W.2d 120 (dog barking ordinance); State v. Beyer, 441

N.W.2d 919, 921-22 (N.D. 1989) (muffler requirement); State v.

Johnson, 417 N.W.2d 365, 368-69 (N.D. 1987) (possessing explosives);

State v. Motsko, 261 N.W.2d 860, 865 (N.D. 1977) (kidnapping); State

v. Hagge, 211 N.W.2d 395, 398 (N.D. 1973) (negligent driving).

[¶27] In another line of cases, this Court recited the standard while refusing to decide the merits of facial vagueness claims when challengers could not show

laws were vague as applied to their own conduct. In each of these cases, the

Court explained litigants lacked “standing.” We provided examples in

Wrigley II, 2025 ND 26, ¶ 24:

For example, in State v. Tibor, [373 N.W.2d 877, 879 (N.D. 1985)], a

man challenged a gross sexual imposition law as being

unconstitutionally vague. We reasoned the man could not advance

“hypothetically unconstitutionally vague applications” based on

conduct other than his own. Id. at 881. We decided the man lacked

standing because he had not demonstrated the law “is

impermissibly vague as applied to him.” Id. In State v. Holbach, 2009

ND 37, 763 N.W.2d 761, a man brought a vagueness challenge to a

law criminalizing stalking. We noted he did not claim the law was

vague as applied to his own conduct. Id. ¶ 22. We explained that,

outside the First Amendment context, litigants cannot rely on

“potentially vague application in other circumstances.” Id. ¶ 25. We

rejected his claim because “a reasonable person would know [his]

conduct was prohibited by the statute.” Id. ¶ 26. In State v. Ness, 2009

ND 182, 774 N.W.2d 254, a man was convicted for failing to tag a

deer. He had transported the deer from the field and was butchering

it when he was cited for violation of a hunting proclamation. Id. ¶ 9.

He argued the proclamation’s use of the word “immediately” was

unconstitutionally vague. Id. We decided he lacked standing to

bring such a challenge because, under the circumstances of his case,

“a reasonable person would know” his conduct violated the law. Id.

In Interest of D.D., 2018 ND 201, 916 N.W.2d 765, a person who had

been civilly committed challenged laws restricting the possession of

firearms. He claimed the law was vague as to “what type of

possession is required by the committed individual.” Id. ¶ 15. We

decided he lacked standing to argue whether the laws were “vague

in other applications” because the law was not vague “as to his

conduct.” Id.

[¶28] These decisions spoke in terms of “standing,” but the Court did not

dismiss any of them for lack of jurisdiction. Although not expressly articulated, the Court was presumably applying the concept of “standing” in a prudential

sense. See, e.g., Dickerson, 604 F.3d at 742 (“Despite courts’ baseline aversion to facial challenges, the limitations on third-party standing that restrict such

challenges are prudential, not jurisdictional.”). The Montana Supreme Court

recently explained the concept of prudential standing:

Prudential standing is a form of judicial self-governance that

discretionarily limits the exercise of judicial authority consistent

with the separation of powers. Prudential standing embodies the

notion that courts generally should not adjudicate matters more

appropriately in the domain of the legislative or executive branches

or the reserved political power of the people. Prudential standing is

a “malleable” concept, and “cannot be defined by hard and fast

rules.”

Barrett v. State, 547 P.3d 630, 645 (Mont. 2024) (cleaned up); see also Kansas Bldg. Indus. Workers Comp. Fund v. State, 359 P.3d 33, 49 (Kan. 2015) (“Prudential

standing, on the other hand, embodies self-imposed judicial restraints on the

exercise of jurisdiction.”).

[¶29] There are various reasons courts apply prudential standing principles in the context of facial vagueness challenges.

First, doing so serves institutional interests by ensuring that the

issues before the court are concrete and sharply presented. Second,

claims of facial invalidity often rest on speculation. Third, facial

challenges run contrary to the fundamental principle of judicial

restraint that courts should neither anticipate a question of

constitutional law in advance of the necessity of deciding it nor

formulate a rule of constitutional law broader than is required by

the precise facts to which it is to be applied. Fourth, facial challenges

threaten to short circuit the democratic process by preventing laws

embodying the will of the people from being implemented in a

manner consistent with the Constitution.

Dickerson, 604 F.3d at 741-42 (cleaned up).

[¶30] In the vagueness context, exceptions to these prudential principles are

grounded in the notion that vague laws may operate to inhibit the exercise of

constitutionally protected conduct. “Uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly marked.” Grayned v. City of Rockford, 408 U.S. 104, 109 (1972) (cleaned up) (quoting Baggett v. Bullitt, 377 U.S. 360, 372 (1964)). Courts have described this as a “chilling” or “deterrent” effect. See, e.g., Farrell v. Burke, 449 F.3d 470, 497 (2d Cir. 2006) (“Therefore, to determine whether Farrell may bring his facial vagueness challenge, we must first determine whether the Special

Condition will have a substantial chilling effect on protected conduct.”);

Dickerson, 604 F.3d at 742 (“The potential for such a deterrent effect outweighs the prudential considerations that ordinarily militate against third-party

standing.”). This Court has recognized the chilling or deterrent effect a vague law may have in the context of a vagueness claim advanced by anti-abortion

protestors, explaining: “The prohibition against overly vague laws protects

people from having to voluntarily curtail First Amendment activities because of a fear those activities could be characterized as illegal activities due to an unconstitutionally vague statute.” Fargo Women’s Health Org., Inc. v. Lambs of Christ, 488 N.W.2d 401, 409 (N.D. 1992).

[¶31] The State has not advanced a rationale for why a vagueness claim related to speech or religion should be treated differently than a claim related to some other fundamental right. We explained the constitutional interests at issue in this case in Wrigley II, 2025 ND 26, ¶ 18:

Through the enactments challenged here, it is indisputable the

State is imposing restrictions on paramount aspects of its citizens’

lives. See State ex rel. Schuetzle v. Vogel, 537 N.W.2d 358, 360 (N.D.

1995) (describing individual autonomy in medical decisions as a

“fundamentally commanding” interest with “well-established legal

and philosophical underpinnings”). Even putting patient autonomy

aside, the plaintiffs’ right to engage in their lawful profession—

practicing medicine—also is significant. See N.D. Const. art. I, § 7

(“Every citizen of this state shall be free to obtain employment

wherever possible . . . .”); see also State v. Cromwell, 72 N.D. 565,

9 N.W.2d 914, 918-19 (1943) (describing the constitutional nature of

“the right to follow one’s individual preference in the choice of an

occupation and the application of his energies”). Moreover, the

conduct at issue encompasses more than simple commerce.

Physicians are expected to apply their knowledge of medicine in a

manner that will protect the health and lives of their patients. See

N.D. Const. art. I, § 1 (declaring the right to defend life inalienable).

[¶32] The State does not claim the right to life and health preserving medical care is less constitutionally protected than speaking freely or practicing a

religion. Just as a vague protest regulation could chill or deter constitutionally protected speech, a vague abortion regulation has the potential to restrict the provision of constitutionally protected medical care. To the extent we have

adopted an exception to the “all applications” or “no set of circumstances”

standard for First Amendment facial vagueness claims, we are convinced that

rationale applies with equal force to claims related to laws regulating the right to access health and life preserving medical care. Doing so, we need not define in this case the outer extent of what that constitutional right entails. The law before us unquestionably implicates the right to health and life preserving

medical care by attempting to define exactly when an expectant mother may

invoke it—i.e., when her health condition is sufficiently dire to permit a doctor to help abort her pregnancy in the interest of her safety. The constitutional

implications are no broader. The provision in question does not implicate “all abortion,” and consequently we need not decide whether “all abortion is

constitutionally protected.” Tufte, J., dissenting opinion, at ¶ 136. Our decision today also has no bearing on the standard for vagueness challenges to laws

governing unprotected conduct. We acknowledge that, consistent with Hoffman

Estates, this Court has applied the “all applications” standard to an ordinary business regulation. See, e.g., Best Prods. Co. Inc. v. Spaeth, 461 N.W.2d 91, 100 (N.D. 1990) (challenging Sunday closing law). We will consider the Plaintiffs’ facial vagueness claim on its merits because the law in question defines when a

pregnant woman’s life and health is sufficiently in jeopardy to justify

terminating her pregnancy, a context unquestionably involving a mother’s

fundamental rights. Wrigley I, 2023 ND 50, ¶ 28 (“Because we hold the North

Dakota Constitution provides a fundamental right to receive an abortion to

preserve a pregnant woman’s life or health, the constitutionality of N.D.C.C. § 12.1-31-12 must be analyzed under the strict scrutiny standard.”).

[¶33] The State argues the district court erred when it decided the N.D.C.C. ch. 12.1-19.1 health-risk exception is unconstitutionally vague. The State asserts the law is sufficiently specific to give physicians fair warning as to when an abortion is permissible healthcare and when it is a criminal act.

[¶34] The N.D.C.C. § 12.1-19.1-03(1) health-risk exception permits: “An

abortion deemed necessary based on reasonable medical judgment which was

intended to prevent the death or a serious health risk to the pregnant female.” The term “reasonable medical judgment” is defined as “a medical judgment that

would be made by a reasonably prudent physician who is knowledgeable about

the case and the treatment possibilities with respect to the medical conditions involved.” N.D.C.C. § 12.1-19.1-01(4). The exception’s specific intent element— that the abortion be intended to protect the pregnant patient—is independent of the law’s reasonableness assessment. The State asserts both requirements must

be satisfied for the health-risk exception to apply, and we agree.

[¶35] We first address the State’s arguments concerning the law’s

reasonableness standard. The State asserts the district court erred when it

decided the law’s “reasonable medical judgment” standard is confusing and

vague. The State claims notions of reasonableness are commonly employed in

criminal law, and the term “reasonable medical judgment” is well-understood

by the medical community because it is the standard employed in medical

malpractice cases. The State claims “there is nothing improper about imposing

criminal liability on physicians when their conduct is objectively not reasonable” and including a subjective intent to prevent harm to the pregnant patient is

consistent with North Dakota’s legal tradition in the analogous context of selfdefense law.

[¶36] Reasonableness can be objective or subjective. State v. Leidholm, 334

N.W.2d 811, 816-17 (N.D. 1983). The difference is the standpoint from which the factfinder views the defendant’s conduct. Id. An objective standard requires the reasonableness assessment to be “from the standpoint of a hypothetical

reasonable and prudent person” without consideration of the defendant’s

unique characteristics or viewpoint. Id. at 817. Conversely, a subjective standard requires the factfinder to assess the circumstances from the defendant’s point of view, accounting for what he or she honestly believed. Id. at 818. Under the

subjective standard, the defendant’s conduct is “viewed from the standpoint of a person whose mental and physical characteristics are like the accused’s and

who sees what the accused sees and knows what the accused knows.” Id.

[¶37] Chapter 12.1-19.1, N.D.C.C., employs an objective reasonableness

standard. It requires a factfinder to assess the reasonableness of a physician’s conduct from the vantage of “a reasonably prudent physician who is

knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.” N.D.C.C. § 12.1-19.1-01(4). The standard is

objective because it does not involve consideration of what the accused physician actually knew or did not know, or what treatment the physician honestly

believed was required. See In re State, 682 S.W.3d 890, 894 (Tex. 2023)

(characterizing law with virtually identical language as an objective standard); Karlin v. Foust, 188 F.3d 446, 459 (7th Cir. 1999) (stating objective “reasonable medical judgment” standard imposes liability on physicians “without regard to

his or her good faith attempt to comply” with the law).

[¶38] The State asserts objective reasonableness is a common legal test and cites cases where this Court upheld criminal laws employing objective notions of

reasonableness in the face of vagueness challenges. For example, in State v.

Tranby, 437 N.W.2d 817 (N.D. 1989), the Court held a law criminalizing negligent homicide was not unconstitutionally vague. The Court decided the statutory

definition of “negligence,” which included “unreasonable disregard” of risk,

was “sufficiently explicit.” Id. at 821. In State v. Hanson, 256 N.W.2d 364 (N.D.

1977), the Court held a law criminalizing reckless endangerment was not

unconstitutionally vague. The law defined “recklessly” as a conscious disregard of risk “involving a gross deviation from acceptable standards of conduct.” Id. at 367. In State v. Hagge, 211 N.W.2d 395 (N.D. 1973), the Court decided a law

criminalizing vehicular manslaughter was not unconstitutionally vague. The law required drivers to be “careful and prudent,” which the Court read to prohibit “careless and negligent” driving, a standard the Court considered sufficiently ascertainable. Id. at 398.

[¶39] Unlike the laws in Tranby, Hanson, and Hagge, N.D.C.C. ch. 12.1-19.1 does not require proof of recklessness or negligence. It requires proof of a specific intent coupled with knowledge of a result. Various acts, defined together as

“abortion,” are criminal when done “with the intent to terminate” a pregnancy

and “with knowledge” the unborn child is likely to die. N.D.C.C. § 12.1-19.1-01(1). The act is criminal if these elements are met no matter how competently it was performed. Notions of reasonableness under N.D.C.C. ch. 12.1-19.1 instead

relate to the health-risk exception, which permits abortions “deemed necessary based on reasonable medical judgment” to protect the mother. N.D.C.C. § 12.1-19.1-03(1). The reasonableness standard in this context is more analogous to our laws governing self-defense and defense of others than it is to laws criminalizing negligent or reckless conduct. The State itself notes that, aside from this specific statutory provision, “self-defense is the only other area of criminal law

addressing when it is permissible to end one life in order to protect another.” See also Wrigley I, 2023 ND 50, ¶ 43 (Tufte, J., concurring and explaining that like an individual exercising self-defense, a “pregnant woman has a fundamental right

to preserve her life and health with the aid of a physician”).

[¶40] Chapter 12.1-05, N.D.C.C., regulates when use of force may be employed

to defend oneself or another. It contains a specific provision regulating use of deadly force by physicians, stating:

2. Deadly force is justified in the following instances:

f. When used by a duly licensed physician, or an individual acting

at the physician’s direction, if the force is necessary to administer a

recognized form of treatment to promote the physical or mental

health of a patient and if the treatment is administered in an

emergency; with the consent of the patient. . . .

N.D.C.C. § 12.1-05-07(2)(f). “A defendant is entitled to have submitted to the jury all defenses for which there is any support in the evidence, whether consistent or inconsistent.” State v. Gagnon, 1997 ND 153, ¶ 9, 567 N.W.2d 807. When

evidence exists to support a defense under N.D.C.C. ch. 12.1-05, the State bears the burden of disproving the existence of the defense beyond a reasonable doubt. City of Jamestown v. Kastet, 2022 ND 40, ¶ 17, 970 N.W.2d 187. We have explained that use of force is legally justified when a person correctly believes force is necessary to prevent imminent harm, and use of force is lawfully excused when

a person “reasonably but incorrectly believes force is necessary[.]” Id. See also N.D.C.C. § 12.1-05-01 (justification); N.D.C.C. § 12.1-05-08 (excuse).

[¶41] In the context of self-defense and defense of others, North Dakota has

expressly rejected the objective reasonableness standard and instead adopted a subjective one. See Leidholm, 334 N.W.2d at 817-18 (reversing criminal conviction after the jury was given objective reasonableness self-defense instruction). Our state has a long history of assessing conduct undertaken in defense of life and health in this way. In 1907, this Court explained subjective reasonableness is the “more just” standard because it does not criminalize good-faith conduct:

We fully agree with appellant’s counsel that defendant’s conduct is

not to be judged by what a reasonably cautious person might or

might not do or consider necessary to do under the like

circumstances, but what he himself in good faith honestly believed

and had reasonable ground to believe was necessary for him to do

to protect himself from apprehended death or great bodily injury.

While there is a diversity of judicial opinion upon the question, we think

the better rule is that the circumstances bearing upon the reasonableness of

defendant’s belief must be viewed from the standpoint of defendant alone,

and that he will be justified or excused if such circumstances were sufficient

to induce in him an honest and reasonable belief that he was in danger. . .

. In some states the rule is that where a man acts upon appearances

he does so at his peril; the test of reasonableness being that the

circumstances surrounding him at the time of the homicide must

have been such as would induce a reasonably cautious man to

believe that he was in imminent peril, and that it was necessary for

him to kill his assailant in order to protect himself from death or

great bodily harm, while the rule in other states is that the

circumstances must be viewed from the standpoint of defendant

alone, and that he will be justified or excused if such circumstances

were sufficient to create in his mind an honest and reasonable belief

that he was in such imminent danger. The question being an open

one in this jurisdiction, we have decided to adopt the latter rule as

the more just . . . .

State v. Hazlett, 113 N.W. 374, 380 (N.D. 1907) (emphasis added); see also Kastet, 2022 ND 40, ¶ 18 (stating the factfinder must view the circumstances “from the standpoint of the defendant to determine if they are sufficient to create in the defendant’s mind an honest and reasonable belief that the use of force is

necessary to protect himself or herself from imminent harm”); State v. Jacob, 222 N.W.2d 586, 589 (N.D. 1974) (explaining an objective standard allows convictions “using 20-20 hindsight”).

[¶42] To the extent an abortion implicates a legal defense justifying or excusing the use of force, N.D.C.C. ch. 12.1-19.1 introduces an apparent conflict of law in North Dakota. A physician who acts with an honest but mistaken belief that an

abortion was necessary to protect the life or health of a pregnant patient would be guilty of a crime under the objective reasonableness standard set out by

N.D.C.C. ch. 12.1-19.1. Simultaneously, under the subjective reasonableness

standard that applies to defenses under N.D.C.C. ch. 12.1-05, the same physician would be innocent because his belief that the abortion was necessary, although mistaken, was honest. On their face, these conflicting standards make it unclear whether a physician who performs an abortion in good faith will nonetheless

suffer criminal penalties. We make no assessment as to whether or how these

laws could be reconciled. For our purposes here, it suffices to say this new

legislation has introduced considerable uncertainty in the context of abortions performed with the intent to protect the life or health of a pregnant patient.

[¶43] Notwithstanding this apparent statutory conflict, the State argues

physicians are capable of understanding objective reasonableness because it is

the standard employed in medical malpractice cases. The Seventh Circuit Court

of Appeals agreed with this logic in Karlin, 188 F.3d 446, when it addressed a vagueness challenge to a law using an objective reasonableness standard for

determining if a medical emergency justified waiving informed consent

requirements. The law at issue allowed imposition of civil liability, forfeiture of money, and professional discipline. Id. at 466. The court explained the degree of specificity due process requires depends on the severity of the penalties, id. at 458, and the court acknowledged “an objective standard is most vulnerable in

the abortion context when a statute imposes criminal or quasi-criminal

penalties.” Id. at 467. The court upheld the law, reasoning its use of an objective reasonableness standard was consistent with “traditional theories of tort law,” where physicians are accustomed to operating “under the specter of civil liability for unreasonable medical judgments.” Id. The court rejected the vagueness

challenge because the law imposed “no risk of incarceration nor is a violator

labeled with the stigma of having been convicted of a misdemeanor or felony

offense.” Id. at 477.

[¶44] Unlike the law in Karlin, or civil malpractice litigation generally,

N.D.C.C. ch. 12.1-19.1 applies an objective reasonableness standard while

imposing severe criminal penalties. Violation of the law is punishable as a class C felony. N.D.C.C. § 12.1-19.1-02. We explained in Wrigley II:

If the plaintiffs violate the statute, they may be fined $10,000 and

imprisoned for five years. N.D.C.C. § 12.1-32-01(4). Along with the

obvious hardships that accompany a conviction and sentencing for

the commission of a felony, the plaintiffs face the prospect of losing

democratic rights. See N.D. Const. art. II, § 2 (felons prohibited from

voting); N.D.C.C. § 12.1-33-01 (felons prohibited from running for or

holding public office). They also face the prospect of losing their

medical license, a certification they presumably obtained with much

effort and expense. See N.D.C.C. § 43-17-31(1)(c); N.D.C.C. § 12.1-33-02.1 (“A person may be denied a license, permit, certificate, or

registration because of prior conviction of an offense if it is

determined that such person has not been sufficiently rehabilitated,

or that the offense has a direct bearing upon a person’s ability to

serve the public in the specific occupation, trade, or profession.”).

Their general reputation in the community also may suffer. See State

ex rel. Olson v. Langer, 65 N.D. 68, 256 N.W. 377, 387 (1934) (“[I]nfamy

is a punishment as well as stigma on character.”). The harsh

punishment the plaintiffs face if they fail to conform their medical

practice to the requirements of the law makes the degree of

specificity required here very high.

2025 ND 26, ¶ 19.

[¶45] In other jurisdictions, abortion regulations employing criminal sanctions have survived vagueness challenges when they used a subjective reasonableness

standard that excepted good-faith conduct like our law governing self-defense

and defense of others. For example, the Idaho Supreme Court rejected a

vagueness challenge to a law permitting abortions when a physician determines

“in his good faith medical judgment and based on the facts known to the

physician at the time, that the abortion was necessary to prevent the death of the pregnant woman.” Planned Parenthood Great N.W. v. State, 522 P.3d 1132, 1203

(Idaho 2023). The Idaho court explained:

The plain language of the above provision leaves wide room for the

physician’s “good faith medical judgment” on whether the abortion

was “necessary to prevent the death of the pregnant woman” based

on those facts known to the physician at that time. This is clearly a

subjective standard, focusing on the particular physician’s

judgment. Contrary to Petitioners’ arguments, the statute does not

require objective certainty, or a particular level of immediacy, before

the abortion can be “necessary” to save the woman’s life.

Id. (emphasis in original); see also A Woman’s Choice-East Side Women’s Clinic v. Newman, 671 N.E.2d 104, 109 (Ind. 1996) (explaining law regulating abortion with “good faith clinical judgment” standard means “a physician who acts with care

and good faith has no rational fear of criminal prosecution”). We are convinced the objective reasonableness standard employed by N.D.C.C. ch. 12.1-19.1, which allows no exception for good-faith acts, coupled with the harsh criminal

penalties the law imposes, creates a heightened risk of deterring physicians from engaging in constitutionally protected conduct.

[¶46] The risk created by the law’s objective standard and felony penalties is not necessarily fatal, but it demands clear and specific language. We turn to the State’s contention the law is readily understandable by the medical community. The State claims its experts’ testimony demonstrates physicians clearly

understand what medical care is permissible under the law and what constitutes a felony. We disagree N.D.C.C. ch. 12.1-19.1 provides the clarity the State claims.

[¶47] A number of the State’s expert witnesses incorrectly opined that the

statute’s “reasonable medical judgment” is a subjective standard. For example, Dr. Jerry Obritsch, an obstetrician, testified the standard was subjective and explained: “Most of what we do in medicine is subjective.” Dr. Charles Allen, an emergency medicine physician, testified the reasonable medical judgment

standard is:

[A] difficult definition because most of what I do is subjective.

There’s very little in medicine that’s objective. So would a

reasonable, prudent—or decision be subjective? Most of it would be.

There’s definitely objective data. There’s results of a CAT scan, but

that’s subjective to the radiologist’s interpretation, the specialist’s

interpretation, the emergency physician’s interpretation.

Lab data is objective, however, needs to be taken into consideration

of what’s the patient’s past labs, what are they now, where are they

going to. Same with any x-rays or other studies, they’re all

subjective. There’s very little objective data. So, yes, a medical

judgment would be subjective.

Dr. Samantha Kiedrowski, a family medicine practitioner, incorrectly opined the law only criminalizes malicious conduct. She testified:

There could be a hypothetical scenario where there would be a

physician who is malicious and making a poor medical judgment,

but in my understanding, when you take the patient scenario into

account and you come up with a diagnosis and a treatment plan,

that’s what constitutes medical judgment. And aside from a

physician who is attempting to be malicious, it would be considered

reasonable.

[¶48] The State’s experts also provided testimony demonstrating confusion

and disagreement relating to other terms used in the health-risk exception, which requires physicians to decide whether an abortion is necessary “to prevent the death or serious health risk to the pregnant female.” N.D.C.C. § 12.1-19.1-03(1). The law defines “serious health risk” as a condition that “necessitates an abortion to prevent substantial physical impairment of a major bodily function, not

including any psychological or emotional condition.” N.D.C.C. § 12.1-19.1-01(5).

[¶49] None of the State’s experts were able to explain in clear terms what the term “serious health risk” means. Dr. Obritsch testified:

Q. So looking at the word “serious,” how do you determine whether

a risk is serious or not under the law?

A. It depends on reasonable medical judgment.

Q. Do you have a working definition of the word “serious” in this

context?

A. Serious is a term that is applicable in different ways to different

patients. What is serious to one patient may not be serious to another

patient. . . .

Who can predict what is a serious health risk in our profession

regarding one patient versus another?

Dr. Charles Allen described it as a “subjective decision,” and also could not

articulate a clear meaning for the term:

Q. . . . And what is your understanding of the term “serious health

risk”?

A. Serious health risk would be a risk that a physician, after

examining, you know, the patient and the information, all the data

you have about the case, that that patient—the physician would

realize that there was potential for harm to the mother, to—and

terms to any type of bodily function—or there’d be any harm to her

physically, and then, again, that—well, I think I’ve said every—on

that one. I’d as soon go back to “and the informed consent,” but you

just asked about the—the definition.

Later, Dr. Allen clarified:

Q. How certain does a risk need to be for it to be considered serious?

A. There’s so many variables in medicine, and each one of us is

created differently and each one of our organs operate differently.

And it is so variable, that it would all be speculation.

But it’s a continuum.

Q. So where in that continuum that you described would you say

that a certain condition becomes serious?

[. . . Objection from counsel. . . .]

THE WITNESS: I can’t answer that question. I don’t have a concrete

answer for you.

Dr. Kiedrowski also could not articulate what the term meant:

Q. . . . [H]ow serious does it need to be that it will result in a more

severe condition to be a serious risk?

A. The question was how certain does it need to be?

Q. Yes.

A. Okay. I can’t put a number on that, I don’t think, like a

percentage.

Q. Would 50 percent risk of mortality make it serious?

A. Again, I can’t put on a number on that. It would depend on the

scenario and depend on the patient.

Q. Would it depend on your subjective understanding of the case in

front of you?

A. It would depend on the clinical scenario. It would depend on the

patient’s willingness to accept risk or not accept risk. The patient’s

preferences.

[¶50] The State’s experts also struggled to articulate a meaning for the term

“substantial physical impairment.” Dr. Obritsch testified:

Q. What is physical impairment under the law?

A. Physical impairment, medically speaking—I’m not sure under

the law, because, again, now you’re into the law. A physical

impairment is anything that impairs a person from carrying on the

activities that they normally are capable of doing.

Q. Do you have an understanding of what physical impairment

means under the law?

A. I would have to research what the law states about physical

impairment.

Q. So it’s fair to say you do not have a working understanding of

what physical impairment means under the law?

A. Correct.

Dr. Maureen Curley, a psychiatric nurse practitioner and university professor, also could not articulate a meaning for the term:

Q. And what makes physical impairment substantial rather than not

substantial?

MR GAUSTAD: Objection. Vague.

A. I don’t think I could answer that.

Q. Is substantial physical impairment a term you’re familiar with

from your training and experience?

A. I think that I would not know the difference. I mean I could not

speculate on that.

Q. So is it fair to say that substantial physical impairment is not a

term you’re familiar with from your training and experience?

A. I think that general physical impairment I am, you know.

Substantial I—would affect the life and health of the mother I would

imagine.

Q. But you’re not familiar with the term “substantial physical

impairment”?

A. Not as a—I guess not as a particular definition and with specific

criteria I am not.

Dr. Kiedrowski similarly testified:

Q. Is the term “substantial physical impairment” a term you’ve seen

in your medical training or in the literature?

A. Again, I have not seen those three words put together in medical

literature, similar to before.

Q. How much damage to these systems would a patient need to

suffer a substantial physical impairment?

A. That’s a general question. That would depend on a specific

clinical scenario.

Q. There’s no objective standard of when damage to those systems

constitutes a substantial physical impairment?

A. Not in a general sense, no.

[¶51] The State’s experts also provided conflicting testimony as to what the

term “major bodily function” means. Dr. Allen testified:

Q. So is that a yes, that there is a medical distinction between a minor

and major bodily function?

A. Yes.

Q. And is the distinction the same between the definitions in the law

and the definitions medically?

A. They’re—in my opinion, they’re one and the same.

Dr. Kiedrowski, on the other hand, testified:

Q. Are major bodily functions contrasted from minor bodily

functions?

A. That’s not something that we contrast in medical literature, no.

Q. You couldn’t tell me which functions are major and which ones

are minor?

[. . . Objection by counsel. . . .]

THE WITNESS: No. I couldn’t make a list for you of those two.

[¶52] The State’s experts similarly disagreed as to whether mental health

constitutes a “major bodily function.” Dr. John Thorp, an obstetrician, testified:

Q. Is mental health a major bodily function?

A. Yes, ma’am.

[. . . Objection by counsel. . . .]

Q. Is cognition a major bodily function?

A. Yes, ma’am.

Dr. Curley responded to the contrary: “I see mental health differently than a

bodily function.” When asked whether “cognitive behavior could constitute a

major bodily function,” Dr. Allen responded differently: “A. Yeah. Q. And same with executive functions? A. Yes.”

[¶53] The State’s experts also disagreed as to whether the health-risk exception would permit an abortion to treat risks caused by mental health disorders. Dr. Thorp testified abortions are generally not used to treat mental health disorders, and explained:

But it seems to me that if a well-meaning, well-intended clinician,

that’s his or her prudential judgment, that this mental health

disorder seriously impacts the life of this mother and that in ending

pregnancy, that would prevent that from happening or would

greatly lessen the likelihood of that happening, then she or he can

make that decision.

Q. Do you know if that’s permitted under the amended abortion

ban?

A. I think it is.

Dr. Kiedrowski acknowledged mental health could pose a risk in “the setting of self-harm or suicidal ideation,” but disagreed with Dr. Thorp that abortions

would be permissible to treat mental health conditions. Dr. Kiedrowski testified:

Q. So would an abortion be impermissible for a patient suffering

from mental health issues?

A. Under the law, abortion would be impermissible for those

patients.

[¶54] The State’s experts’ uncertainty about the language employed by the law

demonstrates considerable disagreement as to what circumstances justify law

enforcement imposing criminal charges. A conviction is not necessary to cause

considerable disruption to a criminal defendant’s life. Vague statutory language “allows policeman, prosecutors, and juries to pursue their personal

predilections,” essentially leaving policymaking to unelected individuals

instead of a duly elected legislative body. Smith v. Goguen, 415 U.S. 566, 575 (1974). Chapter 12.1-19.1, N.D.C.C., does not provide law enforcement with

definitions for terms like “psychological or emotional condition,” and

“substantial physical impairment” and “major bodily function.” Yet these terms are not beyond legislative description. See, e.g., N.D.C.C. § 25-03.1-02(12)

(defining “mentally ill person”); N.D.C.C. § 12.1-01-04(28) (defining “serious bodily injury”); N.D.C.C. § 12.1-01-04(30) (defining “substantial bodily injury”); N.D.C.C. § 65-05-12.2 (providing instructions for determining whether an injury constitutes a permanent impairment). The absence of clear guidelines under

N.D.C.C. ch. 12.1-19.1 creates a substantial risk of ad hoc and subjective

enforcement of the law by police and prosecutors. It is the legislature’s

responsibility to clearly define the bounds for the executive branch’s exercise of the State’s police power. The vagueness present in this law invites

discriminatory and arbitrary enforcement to an extent requiring judicial

intervention.

[¶55] We agree with the district court that, in the context of medical care the Plaintiff physicians perform with the intent of protecting the lives and health of their patients, N.D.C.C. ch. 12.1-19.1, does not give fair warning and allows for discriminatory and arbitrary enforcement. As we have explained, the law’s use

of an objective reasonableness standard criminalizes a physician’s conduct

regardless of whether he or she acts in good faith. To the extent an abortion may be permissible as self-defense or in defense of others, this new legislation has created an apparent conflict of law with existing statutes related to those legal concepts. The State’s expert witnesses all testified they understood the law, but when asked about the meaning of essential terms the experts provided unclear

and often conflicting responses. In the face of this uncertainty, the law imposes harsh felony penalties for non-compliance. These harsh penalties demand a high degree of specificity, which the State has not provided. For all of these reasons, the Plaintiffs have established N.D.C.C. ch. 12.1-19.1 operates to deter

constitutionally protected conduct by means of vagueness, in violation of the due process guarantees set forth in Article I, § 12 of the North Dakota Constitution.

On these grounds, the court did not err granting summary judgment in favor of

the Plaintiffs.

[¶56] Having decided unconstitutional vagueness exists in N.D.C.C. ch. 12.1-19.1, we must determine whether the offending language can be severed from

the rest of the legislation. See N.D.C.C. § 1-02-20 (stating a judgment declaring a law invalid “is confined in its operation” to the portion of the law “directly involved in the controversy in which such judgment has been rendered”).

[¶57] “Severability is a question of statutory and constitutional interpretation by which we seek to determine legislative intent first and foremost by reference to the ordinary meaning of the enacted text.” Northwest Landowners, 2022 ND 150, ¶ 37. “‘[I]f a legislative act be in part unconstitutional, the valid portion shall stand, unless the result be one not contemplated or desired by the Legislative Assembly.’” N.D. Legis. Assembly v. Burgum, 2018 ND 189, ¶ 66, 916 N.W.2d 83

(quoting State ex rel. Link v. Olson, 286 N.W.2d 262, 274 (N.D. 1979)); see also Baird v. Burke Cnty., 205 N.W. 17, 22 (1925).

[¶58] Our task is to analyze the law “as it would stand after striking from it those sections declared unconstitutional,” and decide whether the legislature

would have enacted the law without the offending provisions. Arneson v. Olson, 270 N.W.2d 125, 138 (N.D. 1978). “[I]f the constitutional and the unconstitutional portion are interdependent, such that the valid portion cannot be given effect without the invalid portion, we must declare the entire law invalid.” Northwest Landowners, 2022 ND 150, ¶ 37; see also Montana-Dakota Utilities Co. v. Johanneson, 153 N.W.2d 414, 424 (N.D. 1967). Put differently, we must decide whether we

can “invalidate and remove the offensive or damaging language without

disturbing the rest of the law.” First Bank of Buffalo v. Conrad, 350 N.W.2d 580, 584 (N.D. 1984).

[¶59] The unconstitutionally vague provisions in this legislation are found in language describing an exception to otherwise criminal conduct. This Court

faced a similar issue in State v. Fischer, 349 N.W.2d 16 (N.D. 1984), where the question was whether a portion of a law creating a defense to issuing a check

with insufficient funds violated the Equal Protection Clause. Id. at 17. The

offending provision created an unconstitutional classification based on a

person’s ability to pay within a certain time period. Id. at 18. The general

prohibition on issuing a check with insufficient funds was not challenged. Id. The Court decided the defense could not be severed from criminal prohibition

because without it:

[A] person may be charged and convicted under that section for

having issued a non-sufficient funds check irrespective of the

issuer’s good faith intent to honor the check. The unconstitutional

language of Section 6-08-16, N.D.C.C., which makes payment of a

check within ten days a defense to a criminal charge under that

section, constitutes an important and integral part of the statute.

That language serves to temper the harsh result of the strict liability

element of the statute. We cannot conclude, therefore, that the 1983

Legislature intended the statute to stand without the affirmative

defense. Consequently, we hold that Section 6-08-16, N.D.C.C., is

unconstitutional and invalid in its entirety.

Id.

[¶60] The unconstitutionally vague language in this case is in the N.D.C.C. §

12.1-19.1-03 health-risk exception. After striking that invalid provision, we are left with a general felony prohibition “for a person, other than the pregnant

female upon whom the abortion was performed, to perform an abortion.”

N.D.C.C. § 12.1-19.1-02. This portion of the law imposing criminal penalties must also be struck because, if it remained intact, the legislation would criminalize even those abortions necessary to prevent the death of pregnant women. As this Court unanimously explained, “a pregnant woman has a fundamental right to

obtain an abortion to preserve her life or her health.” Wrigley I, 2023 ND 50, ¶ 40. Absent the criminal prohibition, which is an integral part of the legislation, the law is inoperable and must consequently be declared invalid in its entirely.

VII

[¶61] The State argues the district court erred in a number of other respects. The State asserts the court incorrectly decided an exception in the law allowing abortions up to six weeks of gestational age in cases of rape and incest is

unconstitutionally vague. See N.D.C.C. § 12.1-19.1-03(2). The State also asserts the court erred when it decided the law did not satisfy strict scrutiny in violation of the rights of pregnant women and girls guaranteed by N.D. Const. art. I, § 1. We do not address constitutional questions “unless such determination is

absolutely necessary.” Espeland v. Police Magistrate’s Court of City of Grand Forks, 49 N.W.2d 394, 399 (N.D. 1951). “The separation of powers created by our state and federal constitutions requires courts to exercise judicial restraint and

constitutional avoidance.” Overbo v. Overbo, 2024 ND 233, ¶ 7, 14 N.W.3d 898.

Because we have decided N.D.C.C. ch. 12.1-19.1 is unconstitutional on other

grounds, we decline to reach the myriad other constitutional issues presented by the State.

VIII

[¶62] The district court did not err in granting summary judgment and

determining Plaintiffs have established N.D.C.C. ch. 12.1-19.1 operates to deter constitutionally protected conduct by means of vagueness, in violation of their right to due process guaranteed by Article I, § 12 of the North Dakota

Constitution. Because the vague parts of the law cannot be severed from the rest, N.D.C.C. ch. 12.1-19.1 should be invalided in its entirety. We would affirm the district court’s judgment on these grounds only, and not decide the remaining

issues before the Court.

[¶63] Daniel J. Crothers

Lisa Fair McEvers

Daniel D. Narum, D.J.

Tufte, Justice.

[¶64] I depart from the majority opinion in two significant respects. First, the majority opinion extends to the natural rights guaranteed by Article I, Section 1, the more stringent vagueness standard we have previously reserved for First

Amendment rights that receive the additional protection of the chilling effect doctrine. Second, the majority opinion extends our precedent to allow a pre37

enforcement facial challenge in which the challengers present only hypothetical future conduct as the basis for the testifying experts’ disagreement about the legal application of the statute. The parties’ presentation of witnesses having expertise in medicine or history who disagree about lawyer-crafted

hypotheticals is not a sufficient basis for a court to declare a statute

unconstitutionally vague. The majority opinion recognizes a protection against chilling exercise of the natural right asserted here, without adequately framing the right or interpreting what scope of protection it may provide to abortion. As I explain below, even assuming a stricter vagueness standard should apply to

statutes implicating a constitutional right, we must first interpret both the

constitutional provision and the statute to resolve whether the statute conflicts with or otherwise implicates the constitutional right. I conclude the statute

challenged here prohibits abortion only in circumstances that are outside the

scope of the Section 1 right of “defending life” and “obtaining safety,” and thus does not implicate Section 1 such that a more stringent vagueness standard may apply under Section 12. Chapter 12.1-19.1, N.D.C.C., is not void under our

ordinary test for vagueness.

[¶65] The State appeals from a district court judgment declaring N.D.C.C.

ch. 12.1-19.1 unconstitutional on its face. In January, a majority of this Court denied the State’s motion for a stay of judgment pending appeal after concluding the statute was unlikely to withstand constitutional challenge. Access Indep.

Health Serv. v. Wrigley, 2025 ND 26, 16 N.W.3d 902 (“Stay Op.”). Two years

earlier, when considering a preliminary injunction against enforcement of the

predecessor statute, this Court concluded similarly. Wrigley v. Romanick, 2023 ND 50, 988 N.W.2d 231 (“Injunction Op.”). Now, with full briefing and argument on the merits, the Court considers for the first time the ultimate issue of

interpreting Article I, Section 1, of the North Dakota Constitution with respect to the Plaintiffs’ fundamental rights and vagueness claims. The natural rights “of enjoying and defending life and liberty” and “pursuing and obtaining safety and happiness” by their own terms predate the constitution and limit legislation

from infringing those rights as they were understood by the people of this state when they voted to adopt the constitution. Careful application of our

longstanding framework for review of these issues yields the conclusion that

Chapter 12.1-19.1, N.D.C.C., is not in conflict with the natural rights protected by Section 1, nor is it unconstitutionally vague in violation of Section 12.

[¶66] As discussed in Section III(C), we have applied a stricter vagueness

standard when a statute implicates certain fundamental rights. Assuming the

standard for evaluating a vagueness challenge depends on whether the

challenged statute implicates a constitutional right outside the First Amendment context, we must first address the scope of the Section 1 rights asserted by the Plaintiffs. Without an understanding of the scope of the right, we cannot assess whether the challenged statute implicates the right, whether in the form of a

direct conflict or in the form of a chilling effect, where that concept applies. We must also determine the scope of the right to resolve Plaintiffs’ claim that the challenged statute infringes rights guaranteed by Section 1, requiring us to apply elevated constitutional scrutiny.

[¶67] Both of the Plaintiffs’ constitutional claims require us to interpret and articulate the scope of the Section 1 rights. The objective of our interpretive task is to find the ordinary meaning of the text to the people of the state when they adopted the constitutional statement.

[¶68] The State appeals from the district court’s order granting summary

judgment to the Plaintiffs on their facial constitutional challenge to N.D.C.C. ch. 12.1-19.1. A claim that a statute is unconstitutional on its face is a question of law fully reviewable on appeal. City of Fargo v. State, 2024 ND 236, ¶ 10, 14

N.W.3d 902. Our review of a district court order granting summary judgment is

also a question of law we review de novo. Id. ¶ 8.

[¶69] This Court has a longstanding and consistent method of interpreting our

constitution: we interpret the legal meaning of a constitutional provision by

determining how it would have been commonly understood by those who

enacted it. Sorum v. State, 2020 ND 175, ¶¶ 19–20, 947 N.W.2d 382. We do that

because all powers of government derive from the people of this state. N.D.

Const. art. I, § 2 (“All political power is inherent in the people.”); McCarney v. Meier, 286 N.W.2d 780, 784 (N.D. 1979). “The Constitution of the state is its

paramount law. It is a self-imposed restraint upon the people of the state in the exercise of their governmental sovereign power, either by themselves through

the initiative or by their agency, the Legislature.” Egbert v. City of Dunseith, 24 N.W.2d 907, 909 (N.D. 1946).

When interpreting constitutional provisions, we apply general

principles of statutory construction. We aim to give effect to the

intent and purpose of the people who adopted the constitutional

provision. We determine the intent and purpose of a constitutional

provision, if possible, from the language itself. In interpreting

clauses in a constitution, we must presume that words have been

employed in their natural and ordinary meaning.

A constitution must be construed in the light of

contemporaneous history—of conditions existing at and prior to its

adoption. By no other mode of construction can the intent of its

framers be determined and their purpose given force and effect.

Ultimately, our duty is to reconcile statutes with the constitution

when that can be done without doing violence to the language of

either. Under N.D. Const. art. VI, § 4, we shall not declare a

legislative enactment unconstitutional unless at least four of the

members of the court so decide.

SCS Carbon Transp. LLC v. Malloy, 2024 ND 109, ¶ 19, 7 N.W.3d 268 (quoting

Sorum, 2020 ND 175, ¶¶ 19–20).

[¶70] The proper aim for courts interpreting the North Dakota Constitution is

uncontroversial. Our “overriding objective is to give effect to the intent and purpose of the people adopting the constitutional provision.” Injunction Op.,

2023 ND 50, ¶ 17; State v. Blue, 2018 ND 171, ¶¶ 22–23, 915 N.W.2d 122. Nearly 50 years ago, this Court expressed the same standard in a slightly different way:

In construing a written constitution we must make every effort

to determine the intent of the people adopting it. State ex rel. Vogel v.

Garaas, 261 N.W.2d 914 (N.D. 1978); State ex rel. Sanstead v. Freed, 251

N.W.2d 898 (N.D. 1977); State ex rel. Lein v. Sathre, 113 N.W.2d 679

(N.D. 1962); State ex rel. Lyons v. Guy, 107 N.W.2d 211 (N.D. 1961); 1

Cooley’s Constitutional Limitations (8th ed.), Ch. 4, p. 124.

We must examine the whole instrument in order to determine

the true intention of every part so as to give effect to each section

and clause. If different portions seem to be in conflict, we must make

a true effort to harmonize them if practicable.

In interpreting clauses in a constitution we must presume that

words have been employed in their natural and ordinary meaning.

“As Marshall, Ch. J., says: ‘The framers of the

constitution, and the people who adopted it, “must be

understood to have employed words in their natural

sense, and to have intended what they have said.” ’ ” 1

Cooley’s Constitutional Limitations, p. 130.

Both parties contended that contemporaneous construction, as

an aid in construction and interpretation of the constitution,

recognized in this court in State ex rel. Sanstead v. Freed, 251 N.W.2d

898 (N.D. 1977), and its predecessors, favored its point of view on

the construction of § 148 of the North Dakota Constitution. We,

however, note that in Sanstead an early Attorney General’s opinion

was available, in addition to long-standing practices, whereas here

we have only early legislative Acts carried forward, but relatively

little evidence on practices except for the current practice of the

Bismarck School District.

Cardiff v. Bismarck Pub. Sch. Dist., 263 N.W.2d 105, 107 (N.D. 1978).

[¶71] The Plaintiffs contend that N.D.C.C. ch. 12.1-19.1 violates fundamental

constitutional rights protected by Article I, Section 1 of the North Dakota

Constitution. This provision provides: “All individuals are by nature equally free and independent and have certain inalienable rights, among which are those of

enjoying and defending life and liberty; acquiring, possessing and protecting

property and reputation; pursuing and obtaining safety and happiness . . . which shall not be infringed.”

[¶72] The parties’ arguments frame the fundamental rights protected by

Section 1 in different ways.2 The Plaintiffs describe their claim as a

“constitutional right to obtain life- and health-preserving abortions” and a

“fundamental right to abortions to preserve a pregnant person’s health.”

Alternatively, and more grounded in the constitutional text, they reference

“fundamental rights to ‘enjoy[] and defend[] life’ and ‘pursu[e] and obtain[]

safety.’” Finally, and more expansively, the Plaintiffs ask for recognition of a “person’s general right to bodily integrity,” “a right to bodily autonomy, which necessarily includes a right to obtain an abortion,” and “an individual’s right to control their own body and to exercise self-determination.” The State describes the right at issue as “a fundamental right to abortion,” a “right to on-demand abortions,” a “right to a medically necessary abortion,” and a “right to kill

unborn children with a ‘life-limiting’ diagnosis.” The State also argues that

“conceptualizing medically necessary abortions as a self-defense right

underscores why there is not a right to mental health abortions.”

[¶73] How this Court characterizes the rights claim is a threshold issue because our interpretive analysis is influenced by whether the right is conceived of as a right of “defending life” by means of abortion or a right to abortion for certain purposes or under certain conditions. This framing of the right affects how we approach the evidence of meaning, both historical and textual, as we interpret both the constitution and the challenged statute. As with the rest of our

interpretive task, the answer to the framing question must also be “construed in the light of contemporaneous history,” and thus rooted in evidence of what was the understanding of the enacting public. Sorum, 2020 ND 175, ¶ 20.

[¶74] Section 1 declares North Dakotans “have certain inalienable rights.” As a textual matter, this is a recognition of rights already possessed, not a provision creating rights. Section 1 then lists some, but expressly not all such rights, by introducing these rights with “among which are . . . .” Because the word

2 The majority opinion focuses solely on the State’s arguments. Because this Court reviews the

district court’s conclusions de novo and because the party challenging a statute’s constitutionality bears the burden, the discussion below considers the arguments both parties made to the district court and on appeal.

“abortion” does not appear in the constitution, an abortion-specific framing of the right would have to be necessarily implied in one of the listed rights, or it would have to be a distinct but unlisted natural right. As discussed below in

Section III, framing the right as a right to abortion as such is inconsistent with the available evidence considered according to our interpretive method.

III

[¶75] Rarely is this Court called on to interpret a constitutional claim with so little precedent relevant to the substance of the claim and yet with such capable advocacy and deeply felt convictions motivating people on both sides of the

issue. In such cases, it is especially important that we thoroughly analyze the claim according to the interpretive methods set forth in our many prior decisions resolving questions both controversial and mundane. Particularly when

interpreting a provision dating to the original 1889 North Dakota Constitution, we must be sensitive to the possibility that the surface semantic meaning to

modern readers and interpreters may not reveal the plain or ordinary meaning

for purposes of establishing the legal meaning of the text. The older the text, the greater the potential a court may fail to appreciate the significance of changes in legal context, usage of language, and other factors, especially when interpreting broad terms like “liberty,” “safety,” and “happiness.”

[¶76] In their amended complaint, Plaintiffs cite N.D. Const. art. I, §§ 1 and 12, as the basis for their two claims for relief. To a person reading Section 1 in the year 2025, the terms “enjoying and defending life and liberty” and “pursuing

and obtaining safety and happiness” may convey a meaning in ordinary modern

English that is broad enough to support the Plaintiffs’ constitutional claim. But the legal meaning of a constitution or statute does not change when the language evolves. Laws change when properly amended. Accordingly, courts must

always ask what the enacted words meant to the people who exercised the power

to make those words part of our fundamental law. The words

“enjoying . . . liberty” and “pursuing . . . happiness” are superficially broad enough to implicate a vast array of laws, so we must carefully consider the

relevant history to understand their meaning to the enacting public in proper

context. Only in this way can we determine today what limits these words place on the State’s broad police power.

[¶77] If the Plaintiffs’ proposed interpretation is correct, any statutes regulating abortion were impliedly repealed either in 1889 when the constitution was

adopted or in 1984 when Section 1 was amended. State v. Strom, 2019 ND 9, ¶ 8, 921 N.W.2d 660. To accept Plaintiffs’ arguments and invalidate N.D.C.C.

ch. 12.1-19.1 under Section 1, the Court has limited options: (1) declare an

abortion right was implicit in the 1889 constitution according to our traditional interpretive methods and the historical sources; (2) interpret the 1984

amendment as including a broad and previously unrecognized women’s rights

component; (3) set aside our consistent method for interpreting statutes and

constitutional provisions according to their ordinary meaning as of the

enactment date in favor of a “living” constitution approach; or (4) interpret

Section 1 as providing a fixed legal standard that depends on circumstances that have changed since 1889. As discussed in detail below, the natural rights

guaranteed by the language adopted as Section 1 were understood in 1889 to

secure from further legislative encroachment certain rights and liberties then known to the people. Section 1 has implications for abortion regulation, but it leaves significant room for legislative accommodation of competing interests

and policy choices.

[¶78] Our starting point is the text, because “[w]e determine the intent and

purpose of a constitutional provision, if possible, from the language itself.” Malloy, 2024 ND 109, ¶ 19.

All individuals are by nature equally free and independent and have

certain inalienable rights, among which are those of enjoying and

defending life and liberty; acquiring, possessing and protecting

property and reputation; pursuing and obtaining safety and

happiness; and to keep and bear arms for the defense of their person,

family, property, and the state, and for lawful hunting, recreational,

and other lawful purposes, which shall not be infringed.

N.D. Const. art. I, § 1. Plaintiffs principally rely on Section 1’s recognition that “[a]ll individuals” have the “inalienable rights” of “enjoying and defending life” and “pursuing and obtaining safety.” Absent from the text of Section 1, or any other provision of the North Dakota Constitution, is any explicit mention of

abortion.

[¶79] The plain meaning of Section 1 is insufficient to resolve the interpretive question. A typical reader today reading the bare, literal language of Section 1 without considering the context or other interpretive aids may conclude a wide range of activities fit within the phrases “defending life” and “pursuing and

obtaining safety.” Some constitutional text is so clear that it may provide both the starting point and the stopping point. Thompson v. Jaeger, 2010 ND 174, ¶¶ 12– 13, 788 N.W.2d 586 (directly applying “the plain and unambiguous language of

the self-executing and mandatory provisions of N.D. Const. art. III”); Preference Pers., Inc. v. Peterson, 2006 ND 35, ¶ 8, 710 N.W.2d 383 (starting and ending

statutory interpretation with “plain reading”). Addressing unambiguously clear text is the function of the plain meaning rule. As the U.S. Supreme Court has

often put it, a provision’s meaning is “plain” if it “cannot be read in any other way.” Marco Basile, Ordinary Meaning and Plain Meaning, 110 Va. L. Rev. 135, 156 (2024) (citing United States v. Ron Pair Enters., 489 U.S. 235, 242 (1989); Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997); Caminetti v. United States, 242 U.S. 470, 485 (1917) (“Where the language is plain and admits of no more than one

meaning, the duty of interpretation does not arise . . . .”)). Here, the contextual and structural clues signal that we may not treat this provision as having a plain meaning that answers the interpretive question before us. But see Stay Op., 2025 ND 26, ¶ 31 (“We need not resort to the historical record when the Constitution’s language is clear.”).

[¶80] The broad language of Section 1 is a signal to the Court that we may not start and end with the text under the plain meaning rule. See State ex rel. Sandaker v. Olson, 260 N.W. 586, 589 (N.D. 1935) (“It is idle to talk of ‘interpreting’ language so plain, or attempt a ‘construction’ beyond the clear meaning of the words used by the framers of the Constitution, simply because an exigency has

arisen.”). To conclude that “defending life and liberty” or “pursuing and

obtaining safety and happiness” have a meaning so plain the task of

interpretation ends with the bare text would imply an extraordinarily broad

judicial check on legislative power inconsistent with numerous prior cases. See, e.g., Nw. Landowners Ass’n v. State, 2022 ND 150, ¶ 32, 978 N.W.2d 679 (quoting State v. Cromwell, 9 N.W.2d 914, 919–20 (N.D. 1943)) (“Under the police power

‘the legislature may, within constitutional limitations, not only prohibit all things hurtful to the comfort, safety, and welfare of society, but prescribe

regulations to promote the public health, morals, and safety, and add to the

general public convenience, prosperity, and welfare.’”); see also State v. Riggin, 2021 ND 87, ¶ 14, 959 N.W.2d 855 (quoting Cromwell, 9 N.W.2d at 919)

(explaining police power “must be confined to such restrictions and burdens as are thus necessary to promote the public welfare, or in other words, to prevent the infliction of public injury”). Such an approach would trigger strict scrutiny review of any regulation claimed to interfere with a person’s defense of liberty or pursuit of safety and happiness. Needless to say, our precedent applies far more deferential review. Best Prods. Co., Inc. v. Spaeth, 461 N.W.2d 91, 96 (N.D. 1990) (“Under this rational basis standard, we uphold legislation unless it is patently arbitrary and bears no rational relationship to a legitimate

governmental purpose.”); Larimore Pub. Sch. Dist. No. 44 v. Aamodt, 2018 ND 71, ¶ 34, 908 N.W.2d 442 (citation omitted) (“When no suspect class, fundamental

right, or important substantive right is involved, we apply a rational basis

standard and sustain the legislative classification unless it is patently arbitrary and bears no rational relationship to a legitimate governmental purpose.”).

Clearly, the Court must do more than ask whether abortion is within the literal meaning of “defending life and liberty” or “obtaining safety.”

[¶81] There is more than one plausible interpretation of “defending life and

liberty.” The Century Code has prohibited abortion in most circumstances since before statehood. And yet, the fundamental right Plaintiffs claim protects

abortion was apparently overlooked by every person alive when Section 1 was

adopted and by almost everyone else in the time since. The fact that it took more than a century for Section 1 to be asserted against any of the statutes

criminalizing abortion refutes any notion that the language “defending life and liberty” or “pursuing and obtaining safety” plainly limits state regulation of abortion. We have extensive historical evidence of frequent prosecutions which

would have been defeated by the constitutional claims raised here. See, e.g., State v. Reilly, 141 N.W. 720, 728 (N.D. 1913) (affirming murder conviction including abortion as predicate felony without mention of constitutional claim); State v. Moeller, 138 N.W. 981 (N.D. 1912) (same); State v. Belyea, 83 N.W. 1, 3 (N.D. 1900) (same). If, beginning in 1889, the plain meaning of Section 1 clearly included nonlifesaving abortion, surely one of the persons prosecuted for the crime would

have raised a Section 1 claim in their defense. The plain meaning of the text of Section 1 does not resolve our question here.

[¶82] Having determined that the plain meaning rule does not end our

analysis, we must consider whether the ordinary and commonly understood

meaning of the rights described in Section 1 nonetheless protects abortion

directly or imposes such limits by necessary implication. Blue, 2018 ND 171, ¶ 23; City of West Fargo v. McAllister, 2022 ND 94, ¶ 6, 974 N.W.2d 393; Bd. of Trs. of N.D. Pub. Emps. Ret. Sys. v. N.D. Legis. Assembly, 2023 ND 185, ¶ 11, 996 N.W.2d 873; Cardiff, 263 N.W.2d at 107 (presuming “natural and ordinary meaning”);

State v. Sherman, 245 N.W. 877, 882 (N.D. 1932) (applying “ordinary and obvious meaning”). Ordinary meaning refers to the informational content that statutory words and phrases communicate to an ordinary person. State v. Velasquez, 1999

ND 217, ¶ 4, 602 N.W.2d 693 (“Words in a statute are to be understood in their ordinary sense, that is the meaning an ordinary person could get from reading

the section.”); see also N.D.C.C. § 1-02-02; Huether v. Nodak Mut. Ins. Co., 2015 ND 272, ¶ 9, 871 N.W.2d 444 (quoting Martin v. Allianz Life Ins. Co., 1998 ND 8, ¶ 12, 573 N.W.2d 823) (“The ordinary meaning is the definition a non law-trained

person would attach to the term.”); State v. Wallace, 187 N.W. 728, 730 (N.D. 1922) (explaining an “ordinary term” is “easily capable of comparatively accurate

definition” and is so to “the mind of the layman and lawyer alike”).

[¶83] A leading treatise on legal interpretation describes “ordinary meaning”

as “the most fundamental semantic rule of interpretation.” Antonin Scalia &

Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 69 (2012). “Words are to be understood in their ordinary, everyday meanings—unless the context

indicates that they bear a technical sense. . . . Interpreters should not be required

to divine arcane nuances or to discover hidden meanings.” Id. This is consistent with how we have described the search for ordinary meaning. Cont’l Hose Co. v. City of Fargo, 114 N.W. 834, 836 (N.D. 1908) (stating the Court will apply the “common meaning” of a term unless the plaintiff meets its burden that a

technical meaning was meant); Wallace, 187 N.W. at 732 (“It is not the duty of this court to legislate nor to search for a hidden meaning of plain and hitherto unambiguous words employed by the Legislature.”). Ordinary meaning is the

meaning that is “commonly understood.” See Tormaschy v. Hjelle, 210 N.W.2d 100 (N.D. 1973); Newman v. Hjelle, 133 N.W.2d 549, 555–57 (N.D. 1965) (considering newspaper advertisements, publicity pamphlets, and statutes in effect as

evidence of how the framers and the people who adopted a provision

understood it); Salzseider v. Brunsdale, 94 N.W.2d 502, 504 (N.D. 1959) (explaining ordinary or commonly understood meaning); see generally Marco Basile, 110 Va.

L. Rev. at 151 (“[O]rdinary meaning is what the statutory text would convey to a reasonable English user in . . . ‘ordinary’ communication.”).

[¶84] To discern the ordinary meaning of Section 1, we consider the meaning

of the words at the time of enactment, by reference to contemporary usage,

including dictionaries. See Hanneman v. Cont’l W. Ins. Co., 1998 ND 46, ¶ 31, 575 N.W.2d 445 (citation omitted) (“The dictionary is a good source to determine the plain, ordinary definition of an undefined term.”); see also State v. Willard, 2022 ND 34, ¶ 13, 970 N.W.2d 197 (applying the dictionary term as “the ordinary

meaning of the term”); State v. Monson, 518 N.W.2d 171, 174 (N.D. 1994)

(describing dictionary definition of the term “contact” as the “ordinary

meaning” of the term); State v. Wolff, 512 N.W.2d 670, 672 (N.D. 1994) (describing dictionary definition of the term “serve” as “the ordinary meaning”); Cont’l Hose Co., 114 N.W. at 836 (using dictionary term to describe “ordinary meaning” of

the term). We consider grammar, look for legal terms of art, and consider the

surrounding text. See, e.g., N.W. Bell Tel. Co. v. Wentz, 103 N.W.2d 245, 253-54 (N.D. 1960) (focusing on the grammar of the statute to interpret its intent).

Evidence of the drafters’ intent is relevant, but is secondary to evidence of the enacting voters’ understanding. State v. Taylor, 133 N.W. 1046, 1050 (N.D. 1911) (stating understanding of convention delegates “not controlling” but an aid to determine the understanding of the ratifying public); Sonnesyn v. Akin, 97 N.W.

557, 561 (N.D. 1903) (explaining legislature’s expanded definition of the term, enlarging the “legislative definition” beyond “the common and ordinary

meaning of the term”). Statements about a provision’s purpose may be relevant

if known to the voting public. Other contemporaneous public explanations or

characterizations by advocates and opponents may also inform what the public

understood as to a provision’s meaning. Newman, 133 N.W.2d at 555–57. Implicit in our interpretive rules’ focus on the date of enactment is the notion that the meaning is fixed as of that date until the provision is amended. State v. McGinnis, 2022 ND 46, ¶ 14, 971 N.W.2d 380 (explaining that the Court’s interpretation

declares what the text means “at all times before it was amended”); Egbert, 24 N.W.2d at 910.

[¶85] The Plaintiffs and their amici cite to several statehood-era dictionaries to support their proposed ordinary meaning of Section 1. To aid our interpretation of the ordinary meaning of “enjoying and defending life,” the Plaintiffs cite

dictionary definitions for “enjoy,” “defend,” and “life.” “Enjoy” may be defined as “[t]o have, possess, and use with satisfaction; to occupy, as a good or

profitable thing, or as something desirable; as, to enjoy a free constitution and religious liberty.” Webster’s Complete Dictionary 449 (1886). Similarly,

“enjoyment” may be defined as “[t]he exercise of a right; the possession and

fruition of a right.” Henry C. Black, A Dictionary of Law 421 (1891). “Defend” may be defined as “[t]o repel danger or harm from; to protect; to secure against attack; to maintain; to uphold; as, to defend a town; to defend a cause; to defend character; to defend the absent.” Webster’s Complete Dictionary 345 (1886). “Life” may be defined as “[t]hat state of an animal or plant in which its organs are capable of performing their functions” or “[t]he time during which the human soul and

body are united.” Id. at 771.

[¶86] We also consider contemporaneous dictionary definitions as an aid in

interpreting the right of “pursuing and obtaining safety.” As Plaintiffs note, these dictionaries define “pursue” as to “seek” or “use measures to obtain”;

“obtain” as to “get hold of by effort,” “gain possession of,” or “acquire”; and “safety” as “freedom from danger or hazard; exemption from hurt, injury, or

loss.” Webster’s Complete Dictionary 904, 1065, 1162 (1886).

[¶87] No evidence has been presented, and we have found none, that there was

any discussion at the constitutional convention or in newspapers leading up to the adoption of the constitution about the scope of Section 1. More particularly, there is no indication either way about potential relevance to state regulation of abortion or any other medical practice or procedure. Despite Section 1’s

affirmation of Lockean natural rights, there was little or no contemporaneous

discussion as to whether or to what extent Section 1 would curtail the legislative power when a statute is alleged to infringe natural rights of life, liberty, property, reputation, safety, and happiness. The ordinary meaning of these words and

phrases, broad though it appears to be, is one piece of the interpretive puzzle.

[¶88] When interpreting a legal document, including our state constitution,

“[w]e must examine the whole instrument in order to determine the true

intention of every part so as to give effect to each section and clause.” Cardiff, 263 N.W.2d at 107; Kelsh v. Jaeger, 2002 ND 53, ¶ 19, 641 N.W.2d 100; McCarney v.

Meier, 286 N.W.2d 780, 785 (N.D. 1979).

[¶89] Judicial recognition and enforcement of express and implied natural

rights in Section 1 are in tension with this Court’s precedent on the broad scope of the legislature’s police power. Through our state constitution, the people

delegated to the Legislative Assembly all legislative power, subject only to

express restrictions. Blue, 2018 ND 171, ¶ 23 (“Under the Constitution of this state all governmental sovereign power is vested in the Legislature, except such as is granted to the other departments of the government, or expressly withheld from the Legislature by constitutional restrictions.” (cleaned up)); Ex parte Corliss, 114 N.W. 962, 966 (N.D. 1907) (“Mr. Cooley, in speaking of the extent of powers

delegated by the people to the Legislature, says: ‘They must be understood to

grant the whole legislative power which they possessed, except so far as, at the same time, they saw fit to impose restrictions.’”). “The term ‘police power’, as understood in American constitutional law, means simply the power to impose

such restrictions upon private rights as are practically necessary for the general welfare of all.” Riggin, 2021 ND 87, ¶ 14; Corliss, 114 N.W. at 979 (Spalding, J., dissenting) (“There is in every sovereignty an inherent right and plenary power

to make all such laws as are necessary to a proper preservation of public security, order, health, morality and justice. This power is called the police power.”). To reinforce the exclusion of the rights declared in Article I from the police power, Section 20 of that Article provides: “To guard against transgressions of the high powers which we have delegated, we declare that everything in this article is

excepted out of the general powers of government and shall forever remain

inviolate.” N.D. Const. art. I, § 20.

[¶90] Plaintiffs assert the broad declaration of natural rights in Article I, Section 1, conflicts with the abortion statute the legislature enacted under the state’s broad police power. Conflicts between the ordinary meaning of these natural

rights of enjoying liberty and obtaining safety and happiness and an otherwise plenary legislative police power are unavoidable. Our limited judicial role

requires a principled way to resolve conflicts that does not depend on judicial discretion about the relative importance of natural rights and legislation. The task of balancing broad and underspecified individual rights against broad,

legislative powers limited only by those underspecified rights is inherently

legislative in character. That power is not given to the judicial branch of

government. This structural tension and the separation of powers limits our

judicial task to determining what natural rights had sufficient historical pedigree to constitute necessarily implied limitations on legislative power. To resolve this apparent structural conflict within the constitution, we must look for interpretive guidance in historical understanding of these natural rights as a limit on

legislative power.

[¶91] As part of considering the “conditions existing at and prior to its

adoption,” Malloy, 2024 ND 109, ¶ 19, we consider the legal context in which a provision was adopted, including the statutory and common law background

against which the new language was adopted, Smith v. Isakson, 2021 ND 131,

¶ 12, 962 N.W.2d 594, and prior authoritative interpretations if the language was adopted from another jurisdiction, Bd. Trs. of N.D. Pub. Emps. Ret. Sys., 2023 ND 185, ¶ 11.

[¶92] At the time the people of North Dakota voted to approve Section 1 as part of the original 1889 constitution, abortion was prohibited under territorial law unless necessary to save the life of the pregnant woman. See MKB Mgmt. Corp. v. Burdick, 2014 ND 197, ¶ 36, 855 N.W.2d 31. In most circumstances, abortion was a criminal offense when the constitution was adopted: “Every person who

administers to any pregnant woman . . . to take any medicine, drug or substance, or uses or employs any instrument, or other means whatever, with intent thereby to procure the miscarriage of such woman, unless the same is necessary to

preserve her life, is punishable by imprisonment.” Compiled Laws of the

Territory of Dakota, § 6538 (1887); Revised Codes of the Territory of Dakota,

§ 337 (2d ed. 1877) (same).

[¶93] The parties and the amicus curiae discuss the records of the convention, and our research confirms there was no specific discussion of abortion and little record at all of discussion or debate about the declaration of rights. MKB Mgmt., 2014 ND 197, ¶ 37; Burleigh F. Spalding, Constitutional Convention, 1889, 31 N.D. Hist. J. 151, 159 (1964) (explaining there “was little or no difference of opinion over the Articles to be contained in the Bill of Rights”). One of the amicus briefs points out that a convention delegate argued “this Convention should throw all the safeguards it is possible to throw, around the rights of the people,” but this comment is unhelpful here because it was specifically “against the consolidation of [railroad] monopolies,” not in reference to the natural rights clause or the declaration of rights more generally. Official Report of the Proceedings and Debates of the First Constitutional Convention of North Dakota 376–77 (1889).

[¶94] Thomas Cooley, the leading jurist and scholar of state constitutions of the era, spoke to the 1889 convention. His treatise provides relevant context for the meaning of state declarations of natural rights. “We shall also expect a

declaration of rights for the protection of individuals and minorities,” which usually contains provisions “declaratory of the fundamental rights of the citizen: as that all men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty,

acquiring, possessing, and protecting property, and pursuing and obtaining

safety and happiness.” Thomas M. Cooley, A Treatise on the Constitutional

Limitations Which Rest Upon the Legislative Power of the States of the American Union

45 (5th ed. 1883). He explained that “since, while they continue in force, they are to remain absolute and unchangeable rules of action and decision, it is obvious that they should not be made to embrace within their iron grasp those subjects in regard to which the policy or interest of the State or of its people may vary from time to time.” Id. at 46. The rights guarded and protected by the constitution do not owe their origin to it; the constitution is “a limitation upon the powers of government in the hands of agents” and is “necessarily based upon the preexisting condition of laws, rights, habits, and modes of thought.” Id. at 47.

[¶95] The convention delegates drafted, and the people approved, the language

of Section 1 with the knowledge that a majority of existing states had a natural rights guarantee. At least 24 states had natural rights guarantees in their state constitutions prior to 1889. See generally Steven G. Calabresi & Sofia M. Vickery, On Liberty and the Fourteenth Amendment: The Original Understanding of the Lockean Natural Rights Guarantees, 93 Tex. L. Rev. 1299 (2015). If there is a known source of a provision, we generally apply any authoritative interpretations of the

language from that source jurisdiction that were issued prior to our adopting the language. Bd. Trs. of N.D. Pub. Emps. Ret. Sys., 2023 ND 185, ¶ 11 (“When North Dakota adopts a statutory or constitutional provision from another jurisdiction, we presume the language was adopted with knowledge of the interpretation

given to it by the source jurisdiction.”). There is no known single source for Section 1, but several sources considered by the delegates to our constitutional convention. See Nicholas S. Samuelson, Digging for Roots in All the Wrong Places, 95 N.D. L. Rev. 495 (2020); Herbert L. Meschke & Lawrence D. Spears, Digging

for Roots: The North Dakota Constitution and the Thayer Correspondence, 65 N.D. L. Rev. 343 (1989). The language adopted as Section 1 does not replicate any

previous natural rights provision.

[¶96] No party or amicus has cited a pre-1889 interpretation of another state’s natural rights provision that provides guidance for our interpretation of the

rights claimed here. Prior to 1889, several states had applied natural rights

clauses to invalidate legislation. See generally Calabresi & Vickery, 93 Tex. L. Rev. 1299 (discussing several decisions declaring slavery unconstitutional, decisions from Vermont and Indiana invalidating other laws, and several dozen discussing natural rights clauses but not invalidating the challenged statute). The

understanding of the people who ratified our constitution in 1889 may have been informed by these decisions that natural rights clauses had been applied to void legislative enactments, but beyond the proposition that these provisions were

understood as providing some enforceable limits on legislation, the pre-1889

decisions from other states provide little guidance on what would have been

understood about the scope of the life, liberty, safety, and happiness rights

claimed here. Post-1889 decisions of other states interpreting their natural rights clauses may be relevant if persuasive, but of course when our state adopts

language from another jurisdiction, only the then-existing judicial interpretation is potentially authoritative. Decisions of other courts published after our

adoption of Section 1 do not inform us about the meaning of the North Dakota

Constitution as understood by the people of this state who adopted it.

[¶97] We give “a great deal of weight” to contemporaneous legislative and

executive interpretation and implementation of constitutional provisions. Fed. Land Bank of Saint Paul v. Gefroh, 418 N.W.2d 602, 604 (N.D. 1988). The available evidence of legislative enactments and executive enforcement in the years

following adoption of Section 1 provides no support for the proposition that the people of this state who adopted the constitution understood the ordinary

meaning of the natural rights of “defending life and liberty” and “pursuing and obtaining safety” to broadly alter the legal status of abortion from its thenexisting practice. As set forth below, no lawmaker, judge, or physician is known to have treated Section 1 as implicating existing abortion regulation, which

permitted abortion only when necessary to preserve the pregnant woman’s life.

No physician who was prosecuted for non-lifesaving abortion in the years

following enactment is known to have raised a constitutional defense. To be sure, mere delay in raising a constitutional claim does not establish the claim is

unsound, but it weighs against a conclusion that the proposed interpretation is consistent with the ordinary and commonly understood meaning of the

constitution. Cooley’s Const. Lim. 85 (“Acquiescence for no length of time can legalize a clear usurpation of power, where the people have plainly expressed

their will in the Constitution, and appointed judicial tribunals to enforce it.”).

[¶98] The laws of Dakota Territory continued in force unless they were in

conflict with the constitution. Dawson v. Tobin, 24 N.W.2d 737, 743 (N.D. 1946) (citing Sec. 2, Schedule N.D. Const.). The parties have cited no evidence that any person believed the state constitution conflicted with the territorial laws

restricting abortion and thus repealed them by implication. To the contrary,

these abortion statutes were recodified on several occasions after the constitution was adopted. MKB Mgmt., 2014 ND 197, ¶ 36 (citing N.D.R.C. §§ 8912, 8913

(1905); N.D. Compiled Laws §§ 9604, 9605 (1913); N.D.R.C. ch. 12–25 (1943);

N.D.C.C. ch. 12–25 (1960)). The 1905 revised code contained the same abortion

restrictions found in the territorial code in § 8912. See also § 8817 (intentional destruction of “a quick child” by drug or any instrument is manslaughter in the first degree). These early statutes weigh against an interpretation of Section 1 as including an abortion right broad enough to conflict with the abortion

restrictions in effect in 1889 and for decades after.

[¶99] These statutes in force after the constitution was adopted are consistent with a narrower self-defense framing of Section 1 as applied to abortion

restrictions. These statutes uniformly made an exception for abortion necessary to defend the pregnant woman’s life. Although we presume the Legislative

Assembly acts consistent with its understanding of the constitution, we do not presume it always legislates to the fullest extent of its constitutional authority. A legislative enactment to prohibit certain conduct is inconsistent with the

existence of a right to that conduct, but an enactment declining to prohibit other conduct does not establish that a constitutional right prevented the Assembly

from doing so.

[¶100] The longstanding and consistent statutory restrictions tend to show the contemporaneous understanding of the Legislative Assembly. State ex rel.

Heitkamp v. Hagerty, 1998 ND 122, ¶ 17, 580 N.W.2d 139 (citing State v. City of Sherwood, 489 N.W.2d 584, 587 (N.D. 1992) (“A contemporaneous and

longstanding legislative construction of a constitutional provision is entitled to significant weight when we interpret the provision.”)). We have explained a

legislative construction is not binding on the courts, but “when it has been

followed by a harmonious and constant course of subsequent legislation which

has been in effect and acted upon for a period of years . . . it is entitled to great

weight in determining the real intent and purpose of constitutional provisions and requirements.” State ex rel. McCue v. Blaisdell, 119 N.W. 360, 364 (N.D. 1909) (citing several cases along with Cooley’s Const. Lim. 81). We give special

consideration to a contemporaneous legislative construction because the

circumstances leading to the constitutional enactment were well known to the

legislators and executive branch officials of the time. See Johnson v. Wells Cnty. Water Res. Bd., 410 N.W.2d 525, 529 (N.D. 1987).

[¶101] At the time of the adoption of the North Dakota Constitution in 1889,

abortion was largely criminalized throughout the United States. Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 248–49 (2022). There is no indication the

convention delegates or the people who adopted the North Dakota Constitution

understood the natural rights to “enjoying and defending life” to implicate

abortion when not necessary to preserve life. Section 1 recognized an existing inalienable natural right, but there is no indication it was understood to broaden the existing understanding of natural rights beyond those recognized at common law and exercised consistent with the territorial code.

[¶102] To the extent the newspapers of the state included public discussion of abortion in the years around adoption of the North Dakota Constitution, they do not support an interpretation of Section 1 broadly protective of abortion not

necessary to protect the life of the mother. Although many reports of abortion close in time to the adoption of the constitution involved criminal charges

following the death of the pregnant woman, the newspaper reports were not

limited to abortions that caused death of the pregnant woman. Stay Op., 2025

ND 26, ¶¶ 69–70 (Tufte, J., dissenting).

[¶103] The reported court cases are consistent with the news accounts. Criminal convictions for abortion offenses were appealed to the North Dakota Supreme

Court several times soon after statehood. See, e.g., Reilly, 141 N.W. at 728; Moeller, 138 N.W. 981; State v. Longstreth, 121 N.W. 1114 (N.D. 1909); Belyea, 83 N.W. at 3. These opinions do not discuss the constitutional status of abortion or suggest natural rights may be implicated. To be sure, a court’s silence on claims not

raised carries little significance, but as evidence of ordinary meaning, one must consider the defendants would have been highly motivated to raise any available defense, and if the scope of natural rights protected by Section 1 is as broad as claimed by Plaintiffs in this litigation, they would have had strong defenses to prosecution. In Belyea, we explained: “The law leaves it for a jury to determine whether or not any miscarriage was necessary to save the life of the pregnant

woman, and, if in the judgment of 12 men a miscarriage of the woman was not

necessary to save her life, a verdict of guilty may be returned regardless of the motives governing the accused.” Belyea, 83 N.W. at 3. In Longstreth, 121 N.W.

1114, the Court addressed Dr. Longstreth’s appeal from a conviction for

abortion. The Court divided on whether there was sufficient evidence presented to prove the abortion was not necessary to preserve the life of the woman. Id. at 1119. The prosecution had presented testimony from the woman that she had

become pregnant by Dr. Longstreth and that he had employed drugs and a

medical instrument on her to induce abortion without ever telling her that an

abortion was necessary to preserve her life. Id. at 1118.

[¶104] The medical treatises and journals cited by the parties provide additional context for how the enacting public would have understood natural rights in

relation to abortion. Taken as a whole, these sources do not support the

conclusion that practicing physicians or the public at large believed there was a natural right to abortion absent a substantial risk of death or bodily injury. Stay Op., 2025 ND 26, ¶¶ 73–79 (Tufte, J., dissenting). The medical literature is

consistent with a natural right to preserve the life of a pregnant woman when

her life and physical health would be in grave danger by continuing the

pregnancy. In short, abortion was understood to be justified as a last resort if the pregnant woman was likely to die or suffer significant physical harm if the

pregnancy continued. Some references suggest there were practitioners who had

a broader view of appropriate practice or who flouted the law without fear of

prosecution. That appears to be a minority view that carries little weight in

understanding the Section 1 natural rights when contrasted with the restrictive legal regime and frequent prosecutions publicized in contemporaneous

newspapers. Amicus McDonagh asserts that “every pregnancy, even a medically

uncomplicated pregnancy, causes or threatens to cause serious bodily injury,”

thus implicating the asserted right. But there is no support in the historical sources that the enacting public would have understood these natural rights so broadly. Further, none of the references provide any meaningful support for the notion of a natural right to abortion arising from mental health concerns or selfinflicted harm. Given the medical technology of the day, there is also no

guidance in the historical sources for a natural right relating to known, serious fetal abnormalities.

[¶105] When the constitution declares a pre-existing right, as opposed to

granting or creating it, the legal background is particularly significant because it is that background understanding to which the constitution refers. For example, like the inalienable rights all individuals have “by nature,” declared in Section 1, the right of trial by jury is declared and secured by Section 13, not granted or created: “The right of trial by jury shall be secured to all, and remain inviolate.” N.D. Const. art. I, § 13 (emphasis added). “This provision preserves the right to a jury trial in all cases in which it could have been demanded as a matter of right at common law at the time of the adoption of our constitution.” Smith, 2021 ND 131, ¶ 12 (citation omitted). “[T]he framers of the Constitution intended by the adoption of said provision to preserve and perpetuate the right of trial by jury as it existed by law at and prior to the adoption of the Constitution.” Riemers v. Eslinger, 2010 ND 76, ¶ 8, 781 N.W.2d 632. “The fact that the Constitution secures ‘the right of trial by jury’ by simply declaring it . . . is significant . . . of an intent to merely perpetuate the right as it then existed and was known to the people

who gave to the Constitution their approbation.” Barry v. Truax, 99 N.W. 769, 771 (N.D. 1904). To determine the scope of such a right, we consider the legal context against in which the provision was adopted, including the codified law of

Dakota Territory then in effect and the common law and practices applied by the territorial courts. Smith, 2021 ND 131, ¶ 22; Riemers, 2010 ND 76, ¶ 10.

[¶106] The language of Article I, Section 1, declares pre-existing rights that all individuals “have”; by its plain language it does not grant new rights. This

structural arrangement is confirmed by Section 20: “everything in this article is excepted out of the general powers of government and shall forever remain

inviolate.” N.D. Const. art. I, § 20; State ex rel. Cleveringa v. Klein, 249 N.W. 118, 124 (N.D. 1933). The term “remain inviolate” presupposes the existing scope of the Article I rights will be preserved unchanged. See City of Bismarck v. Fettig, 1999 ND 193, ¶ 11, 601 N.W.2d 247 (emphasizing the word “remain” as signaling

a continuation of jury trial rights as defined under territorial law). Thus, the pre1889 common law and territorial law as it relates to defending life, justification, and obtaining safety are important considerations to understand the scope of the Section 1 natural rights. “[A] lack of government interference throughout history might be some evidence that a right is deeply rooted. But standing alone, it

cannot be enough.” Abigail All. for Better Access to Developmental Drugs v. von Eschenbach, 495 F.3d 695, 706 (D.C. Cir. 2007). Although we should not reflexively “assume[] that founding-era legislatures maximally exercised their power to

regulate, [and] thereby adopt[] a ‘use it or lose it’ view of legislative authority,” United States v. Rahimi, 602 U.S. 680, 739–40 (2024) (Barrett, J., concurring), the assumption may be warranted here considering the consistent historical

evidence reflecting a strong moral condemnation of abortion in 1889. It is thus likely the Territorial Legislature did maximally regulate abortion.

[¶107] By analogy to our cases preserving the jury trial right as known in 1889, the legislature may not infringe the rights “of enjoying and defending life and liberty” and “pursuing and obtaining safety and happiness” to impair those

rights relative to the rights enjoyed by the people of the state when the

constitution was adopted. The territorial code is discussed above in III(B)(4). Abortion was not prohibited when it was “necessary to preserve her life.” The

state had the burden to prove lack of necessity as an element of the offense

beyond a reasonable doubt. The central defect in the previous law was making

necessity an affirmative defense on which the defendant carried the burden of

proof. Injunction Op., 2023 ND 50, ¶ 44 (Tufte, J., concurring). The background legal context shows the legislature could and did prohibit abortion in all

circumstances not necessary to save the woman’s life. The continuation of these restrictions is strong evidence that the enacting public did not understand

Section 1 to alter that arrangement.

[¶108] After concluding that the meaning of the constitution as enacted in 1889 did not recognize the rights asserted by the Plaintiffs, the district court put significant weight on the amendment to Section 1 approved in 1984. The 1984

amendment is the only time Section 1 has been amended. The unmistakable

purpose of that amendment, not mentioned by the district court, was to add an

express right to keep and bear arms to Section 1. Stay Op., 2025 ND 26, ¶¶ 80–88 (Tufte, J., dissenting). The district court focused on the 1984 amendment’s change of “All men” to “All individuals.” The court’s rationale is not completely clear, but it either concluded that this change from “men” to “individuals” contained a previously-unrecognized gender equality component that included a right to

abortion or it simply set aside its conclusions about the meaning of the

unamended 1889 language because it “simply cannot conclude . . . that the same view must be taken today.” It requires no citation to reject the latter rationale.

[¶109] For completeness, we must consider whether this amendment of “men”

to “individuals” altered the meaning of Section 1 in any way material to the

Plaintiffs’ claims. Plaintiffs did not defend the district court’s reliance on the 1984 amendment in their brief, but at oral argument they stopped short of conceding they had abandoned this argument. Although an appellee may defend the

judgment on grounds rejected by the district court, Kalvoda v. Bismarck Pub. Sch. Dist. #1, 2011 ND 32, ¶ 14, 794 N.W.2d 454, arguments not adequately briefed

are generally waived on appeal, Hoever v. Wilder, 2024 ND 58, ¶ 7, 5 N.W.3d 544.

[¶110] The change from “All men” to “All individuals” was a non-substantive

modernization of language. Stay Op., 2025 ND 26, ¶¶ 80–88 (Tufte, J.,

dissenting). The women of North Dakota were included within the protections

of Section 1 before the amendment, and they remained so with this more modern

inclusive phrasing. See State v. Norton, 255 N.W. 787, 792 (N.D. 1934) (“We

interpret the word ‘men’ in the thought of the convention and of the people of the day as meaning those persons who possessed the qualifications of jurors at that time, with no thought of sex.”).

[¶111] The rest of Section 1, unamended since 1889, continues to carry the same legal meaning since it was enacted. See State ex rel. Paulson v. Meier, 127 N.W.2d 665, 673 (N.D. 1964) (explaining “[t]o the extent that [amendment to a statute] reenacts the provisions of the former law, it is a mere continuation of those

provisions”); see also City of Fargo v. Ross, 92 N.W. 449, 451 (N.D. 1902) (quoting Gordon v. People, 44 Mich. 485, 7 N.W. 69 (1880)) (“So far as the section is changed it must receive a new operation, but so far as it is not changed it would be

dangerous to hold that the merely nominal re-enactment should have the effect

of disturbing the whole body of statutes in pari materia which had been passed since its first enactment.”); Malloy, 2024 ND 109, ¶ 23 (explaining unamended

portion of takings clause continues to have the original 1889 meaning); State ex rel. Strutz v. Baker, 299 N.W. 574, 582 (N.D. 1941) (Morris, J., concurring specially) (“The portions of the amended sections which are merely copied without change

are not to be considered as repealed and again enacted, but to have been the law all along . . . .”). Accordingly, we must interpret the meaning of the language adopted in 1889 as it was understood at that time and not as if it was newly

enacted in 1984.

[¶112] Several of our sister states have considered state constitutional claims asserting rights to abortion. These decisions differ in the type of clause asserted, such as privacy, due process, or natural rights. They also differ in their

consideration of the unique language of each clause, the different historical

circumstances in which each was enacted, and the state’s precedent and

historical application of the provision. The decisions considering natural rights clauses are potentially relevant to our decision here. Other states’ application of clauses guaranteeing privacy rights or due process rights have little relevance to the meaning of Section 1.

[¶113] In a 2023 decision, the Indiana Supreme Court vacated a preliminary

injunction against a statute that broadly prohibited abortion with exceptions for life-threatening circumstances, lethal fetal anomalies, and rape or incest.

Members of Med. Licensing Bd. of Indiana v. Planned Parenthood, 211 N.E.3d 957 (Ind. 2023). The court interpreted Article 1, Section 1 of the Indiana Constitution,

which “DECLARE[S], That all people are created equal; that they are endowed

by their CREATOR with certain inalienable rights; that among these are life,

liberty, and the pursuit of happiness.” Id. at 967. The court concluded this

provision protects a woman’s right to abortion only when necessary to protect

her life or from a serious health risk. Id. at 975–76. The court explained the inalienable right to life was firmly established long before Indiana became a state in 1851. Id. at 976. The court rejected the broader claim that this provision

guarantees a fundamental right to abortion in all circumstances, concluding that while the constitutional provision is judicially enforceable, historical evidence shows that Indiana’s framers understood it to leave the legislature with broad discretion to regulate abortion. Because the statute can be enforced consistent with Article 1, Section 1 in at least some circumstances, the court found that the plaintiffs failed to show a reasonable likelihood of success on their facial

challenge. Id. at 984.

[¶114] In 2023, the Oklahoma Supreme Court upheld a statute prohibiting

abortion “unless the same is necessary to preserve her life” against constitutional challenge under the state constitution’s inherent rights clause. Oklahoma Call for Reproductive Justice v. Drummond, 2023 OK 24, ¶¶ 8–9, 526 P.3d 1123, 1130. The Oklahoma Constitution provides: “All persons have the inherent right to life,

liberty, the pursuit of happiness, and the enjoyment of the gains of their own industry.” Okla. Const. art. II, § 2. Relying on the state’s long history of

outlawing abortion unless necessary to save the pregnant woman’s life, the court concluded the inherent right to life protects a right to terminate pregnancy when necessary to preserve the woman’s life. Drummond, 2023 OK 24, ¶ 9. The court

defined the inherent right to be implicated “if at any point in the pregnancy, the woman’s physician has determined to a reasonable degree of medical certainty

or probability that the continuation of the pregnancy will endanger the woman’s life due to the pregnancy itself or due to a medical condition that the woman is either currently suffering from or likely to suffer from during the pregnancy. Absolute certainty is not required; however, mere possibility or speculation is insufficient.” Id. ¶ 9. The court applied strict scrutiny to uphold the state’s preRoe ban with an adequate exception, while striking down a 2021 criminal

abortion ban given that its medical exception required life to be in “actual and present danger.” Id. ¶ 16.

[¶115] In Planned Parenthood Great Northwest v. State, 522 P.3d 1132 (Idaho 2023), the Idaho Supreme Court held that the Idaho Constitution does not implicitly

guarantee a fundamental right to abortion. The court’s analysis primarily

focused on the Inalienable Rights Clause of the Idaho Constitution, which states: “All men are by nature free and equal, and have certain inalienable rights, among which are enjoying and defending life and liberty; acquiring, possessing and

protecting property; pursuing happiness and securing safety.” Id. at 1167–68.

Petitioners argued that this clause, along with other provisions, implicitly

protects rights to “privacy,” “bodily autonomy,” and “intimate familial

decisions,” which encompass the right to abortion. The court explained that

“inalienable rights, which are not expressly guaranteed, may nevertheless be

implicitly protected as ‘fundamental rights’ within the Inalienable Rights Clause if the particular right is shown to be so rooted in the traditions and conscience of Idaho so as to be ranked fundamental.” Id. at 1174. After considering preexisting territorial laws, the records of the state constitutional convention, and related statutes and common law, the court concluded that a right to abortion was not

“deeply rooted” in Idaho’s history and traditions. Id. The court concluded that the challenged abortion statutes passed rational basis review and were not

unconstitutional under the Idaho Constitution. Id. at 1196–97.

[¶116] In 1982, the New Jersey Supreme Court held that the right to abortion is fundamental under the New Jersey Constitution’s natural rights guarantee. Right to Choose v. Byrne, 450 A.2d 925, 933 (1982) (interpreting provision: “All persons are by nature free and independent, and have certain natural and unalienable

rights, among which are those of enjoying and defending life and liberty, of

acquiring, possessing, and protecting property, and of pursuing and obtaining

safety and happiness.”). The New Jersey Supreme Court interprets its natural

rights guarantee as including a right to privacy, and has analyzed abortion

claims as violating the state constitution’s equal protection guarantee by treating differently those women who seek an abortion from those who decide to carry

to term. Planned Parenthood of Cent. N.J. v. Farmer, 762 A.2d 620, 632 (2000).

[¶117] In 2019, the Kansas Supreme Court interpreted Section 1 of the Kansas

Constitution Bill of Rights to protect a right to abortion. Hodes & Nauser v.

Schmidt, 440 P.3d 461 (Kansas 2019). The court concluded a statutory ban on

abortions by dilation and evacuation was unconstitutional under Section 1,

which provides: “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.” Conducting a

lengthy and thorough analysis of Kansas history, the court determined that the constitution’s natural rights guarantee protects “personal autonomy,” which is “the heart of human dignity” and “encompasses our ability to control our own

bodies, to assert bodily integrity, and to exercise self-determination.” Id. at 497. The court determined that this fundamental right requires the application of

strict scrutiny, meaning the State can restrict it only if it has a compelling interest and the restriction is narrowly tailored to that interest. Id. at 495–96. The court concluded that the abortion providers had demonstrated a substantial likelihood of prevailing on their claim that the Act unconstitutionally infringes upon this right by severely limiting access to the safest procedure for second-trimester abortions. Id. at 501.

[¶118] In 2024, a minority of the Pennsylvania Supreme Court considered, as a

matter of first impression, whether the Pennsylvania Constitution guarantees a right to abortion. Allegheny Reprod. Health v. Pa. Dep’t of Hum. Servs., 309 A.3d 808, 898–99 (Pa. 2024). At issue in Allegheny was the state’s ban on Medicaid

payments for abortions in non-life-threatening situations, and a majority of the court held that the ban violated the state constitution’s equal rights amendment. Id. at 852, 891. Two of the five participating justices also reached the question of whether the state constitution guarantees a right to reproductive autonomy,

while the remainder of the court concluded the case did not properly present the issue of whether there is an abortion right under the state constitution. Id. at 892 n.84, 989 (Todd, C.J., concurring and dissenting), 997 (Dougherty, J., concurring and dissenting), 998 (Mundy, J., concurring and dissenting). Because the right to abortion in Pennsylvania “was firmly ensconced in the federal Constitution,

there ha[d] been no opportunity to address the question of whether [the

Pennsylvania] Constitution protects the right to make decisions involving

reproductive autonomy until Dobbs, when the federal right was retracted.” Id. at

906. The two justices who considered the issue grounded their analysis on Article I, Section 1 of the Pennsylvania Constitution—titled “Inherent rights of

mankind”—which provides: “All men are born equally free and independent,

and have certain inherent and indefeasible rights, among which are those of

enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.” Pa. Const. art. I, § 1. Relying on the court’s privacy jurisprudence, rooted in the inherent rights provision as well as constitutional search and seizure protections, they

concluded that an abortion right inheres in the right to privacy, which they

defined as “the inherent right of an individual to be let alone—to live a private life, to have security in one’s bodily integrity and to make important decisions free of government intrusion.” Allegheny, 309 A.3d at 906. They elaborated that “Article I rights are inherent,” and the court is thus “not constrained, as the Dobbs Court believed it was, to determine whether abortion is ‘deeply rooted’ in the ‘history or traditions’ of the Commonwealth. . . . It is, however, helpful to clarify the status of abortion in Pennsylvania.” Id. They concluded that, at the time the state “Charter was adopted, abortions were available and performed and the

government did not interfere in a woman’s pregnancy until quickening,” i.e.,

“the first perception of a fetal movement by a pregnant woman herself,” which

“generally occurred near the midpoint of gestation, late in the fourth or early in the fifth month.” Id. at 907, 909.

[¶119] Other states applying rights guaranteed by their state constitutions have applied provisions distinctly different in their text and enacted in circumstances far removed from the context of our 1889 provision. See Hope Clinic v. Flores, 2013 IL 112673, 991 N.E.2d 745 (relying on due process and equal protection

provisions it interpreted in lockstep with the United States Constitution); Moe v. Sec’y of Admin. & Fin., 417 N.E.2d 387, 397 (Mass. 1981) (relying on guarantee of due process); Women of the State of Minn. ex rel. Doe v. Gomez, 542 N.W.2d 17, 31 (Minn. 1995) (relying on right to privacy implied in due process and search and seizure clauses); Pro-Choice Mississippi v. Fordice, 716 So.2d 645, 653 (Miss. 1998) (relying on right to privacy implied in state constitution’s Ninth Amendment

analogue); Armstrong v. State, 1999 MT 261, ¶ 39, 989 P.2d 364 (relying on

personal autonomy component of fundamental right of individual privacy);

Valley Hosp. Ass’n v. Mat-Su Coal. for Choice, 948 P.2d 963, 969 (Alaska 1997) (relying on right to privacy).

[¶120] The rights guaranteed by Article I, Section 1, are those natural rights as they were known to the people of North Dakota at the time the constitution was adopted. These natural rights were fixed at that time, and our judicial duty is to ensure that they “shall not be infringed.” These rights are protected from

legislative overreach because they are excluded from the state’s broad legislative power.

[¶121] On the basis of the above consideration of the language of Section 1 in light of all of our traditional interpretive rules and references, including evidence of its ordinary meaning, the legal context, and the contemporaneous

applications, the natural rights that every North Dakota citizen has “by nature” include an individual right to seek medical care without risk of criminal

prosecution, including but not limited to abortion, when reasonably necessary

to preserve the individual’s life. The natural right fixed by Section 1 extends to prevention of physical injury of similar seriousness as the serious bodily injury the enacting public understood would give rise to justified use of deadly force in self-defense. Section 1 does not imply a right to abortion as such, and evolving public opinion on abortion cannot create one—only a constitutional amendment

can do that. State ex rel. Gaulke v. Turner, 164 N.W. 924, 936 (N.D. 1917) (“When the fundamental law has not limited, either in terms or by necessary implication, the general powers conferred upon the Legislature, we cannot declare a

limitation, under the notion of having discovered something in the spirit of the Constitution which is not even mentioned in the instrument.”). Section 1 limits state power to regulate abortion where it is a necessary means to the

constitutionally protected end of “defending life.”

[¶122] Having considered the scope of the Section 1 rights, we now consider

each provision of the statute that the Plaintiffs argue conflicts with rights

guaranteed by Section 1. If the statute infringes a fundamental right, strict

scrutiny applies. Hoff v. Berg, 1999 ND 115, ¶ 16, 595 N.W.2d 285. If not, then our review is much more restrained. Ferguson v. City of Fargo, 2016 ND 194, ¶ 9, 886 N.W.2d 557.

[¶123] Physical conditions and delay. The statute provides an exception for “An abortion deemed necessary based on reasonable medical judgment which was

intended to prevent the death or a serious health risk to the pregnant female.” N.D.C.C. § 12.1-19.1-03(1). “‘Serious health risk’ means a condition that, in

reasonable medical judgment, complicates the medical condition of the pregnant woman so that it necessitates an abortion to prevent substantial physical

impairment of a major bodily function, not including any psychological or

emotional condition.” N.D.C.C. § 12.1-19.1-01(5). Self-inflicted harm is not

within the exception. Id. Plaintiffs argue the statute requires physicians to delay care until the patient develops a serious, avoidable infection. This argument

conflates “serious” with “imminent.” One may have a serious condition such as

an early cancer diagnosis that may not yet substantially impair any bodily

function, yet still clearly be within reasonable medical judgment that treatment is required to save the patient’s life or avoid the serious health risk that any reasonable practitioner understands is to be expected in the natural progression of the condition. The question is whether reasonable medical judgment would

conclude there is a probability as opposed to a mere possibility that an abortion would prevent serious physical injury. Section 1 protects an individual’s right to defend her life using abortion as a means of preventing probable, not merely

possible or conceivable harm. The statute’s definition of serious health risk is consistent with a woman’s Section 1 right to defend her life and avoid serious physical injury, and for a qualified physician to assist her in exercising that right.

[¶124] Mental health conditions. Plaintiffs also argue the legislature’s failure to exclude abortions intended to alleviate or avoid mental health conditions

renders it facially unconstitutional. The legislation defines “serious health risk” as “not including any psychological or emotional condition.” N.D.C.C. § 12.1-19.1-01(5). The historical context discussed above overwhelmingly shows the

Section 1 rights to “defending life” and “obtaining safety” do not encompass

abortion as a means to alleviate mental health conditions. Plaintiffs argue that mental health and physical health conditions may be intertwined. If a

psychological condition is intertwined with a physical malady sufficient to

constitute a “serious health risk,” the statutory exception would apply without regard to any co-occurring psychological condition. Neither the statute’s

omission of mental health conditions nor the omission of self-harm implicates

Section 1 rights. There is no basis on which we could conclude the ordinary

meaning of Section 1 was understood to protect abortion under those

circumstances. Accordingly, the statute does not implicate the scope of the

Section 1 rights and strict scrutiny does not apply. Plaintiffs do not argue the failure to permit mental health abortions is arbitrary or would otherwise fail rational basis scrutiny. The statute has not been shown to be unconstitutional on this basis.

[¶125] Fatal or life-limiting fetal conditions. Plaintiffs argue some pregnancies involve fetal conditions that are “fatal or life-limiting, meaning ‘there is little or no possibility that the fetus will survive until delivery and sustain life after birth without aggressive and oftentimes futile intervention.’” There is nothing in the record that suggests medical technology permitted doctors to anticipate such

conditions in 1889, so there is no reason to think the enacting public had any basis to understand natural rights to be implicated in such situations. This

situation illustrates the importance of framing what legal rule or principle is embodied in Section 1 so that we may apply it to factual circumstances that could not have been anticipated when the law was adopted as part of the constitution. Framing the relevant right as stated above, as a right to defend one’s life from probable serious bodily injury or death, permits us to consider how the legal

meaning of Section 1 may apply to fetal conditions known only to modern

technology.

[¶126] Every policy choice enacted into statute requires some line-drawing. The Legislative Assembly chose not to permit abortion on the basis of a reasonable medical judgment that the baby will likely not survive until birth or may require aggressive and uncertain intervention. No matter how important or personally

compelling that situation may seem to individual judges, the power to permit or prohibit abortion in such situations lies with the legislature, or the people

through ballot initiative. Plaintiffs’ arguments rely on the emotional pain that results from stillbirth or watching a newborn baby suffer and die. Such harms

fall within the exclusion for psychological or emotional conditions. The rights guaranteed by Section 1 do not extend to abortion as a means to prevent such

harms. In contrast, where reasonable medical judgment tells us that a fetal

condition will progress to a serious health condition threatening the pregnant woman, that situation is covered by the “serious health risk” discussion above.

[¶127] Plaintiffs also argue that the statute is unconstitutionally vague under Article I, Section 12. Plaintiffs’ vagueness claim derives from the Section 12 guarantee of due process: “No person shall . . . be deprived of life, liberty or property without due process of law.”

[¶128] As presented here, the vagueness claim is one of first impression. Before this litigation, no previous decision of this Court considered an independent

state constitutional claim asserting a statute was void for vagueness. Our

decisions consistently cite both the state and federal due process provisions and analyze vagueness with reference to U.S. Supreme Court doctrine under the

Fourteenth Amendment without any suggestion that Section 12 may be

amenable to different analysis. Interest of D.D., 2018 ND 201, ¶ 7, 916 N.W.2d 765; State v. Holbach, 2009 ND 37, ¶ 24, 763 N.W.2d 761; Judicial Conduct Commission v. McGuire, 2004 ND 171, ¶ 19, 685 N.W.2d 748; State v. Beyer, 441 N.W.2d 919 (N.D. 1989); State v. Johnson, 417 N.W.2d 365 (N.D. 1987); Olson v. City of West Fargo, 305 N.W.2d 821 (N.D. 1981); Interest of E.B., 287 N.W.2d 462 (N.D. 1980); State v. Woodworth, 234 N.W.2d 243 (N.D. 1975); In re J.Z., 190 N.W.2d 27 (N.D. 1971)

(superseded by rule on other grounds). In one decision, this Court rejected an attempt to “suggest some difference between the state and federal constitutions” in application of a vagueness challenge, describing the attempt as “not an

argument of law” because whether “reasonable noise” is different in a small

town compared to the United States as a whole is a question for the fact finder. City of Belfield v. Kilkenny, 2007 ND 44, ¶ 12, 729 N.W.2d 120. Because Section 12 has language nearly identical to the due process clause of the Fourteenth

Amendment, our cases have long analyzed the clauses in parallel. Here we have

no reasoned argument that we should apply different vagueness analysis under

the purely state claim, so the discussion below assumes without deciding that

the due process protections guaranteed by Section 12 are coextensive with those protected by the Fourteenth Amendment.

[¶129] The district court correctly rejected the Plaintiffs’ framing of their

challenge as an “as-applied challenge supported by speculative facts.” By

granting summary judgment, the court properly concluded this is a facial

challenge that does not depend on any adjudicative facts for resolution. But the court then misapplied our law for facial challenges. We recently summarized our jurisprudence on constitutional challenges:

“Challenges to the constitutionality of a statute may be ‘facial’

challenges or ‘as-applied’ challenges.” State v. Anderson, 2022 ND

144, ¶ 7, 977 N.W.2d 736. “A claim that a statute on its face violates

the constitution is a claim that the Legislative Assembly exceeded a

constitutional limitation in enacting it, and the practical result of a

judgment declaring a statute unconstitutional is to treat it ‘as if it

never were enacted.’” SCS Carbon Transp. LLC v. Malloy, 2024 ND

109, ¶ 7, 7 N.W.3d 268 (quoting Anderson, at ¶ 7). “An ‘as-applied’

challenge, on the other hand, is a claim that the constitution was

violated by the application of a statute in a particular case.” Id. at

¶ 8. “Generally, a party may only challenge the constitutionality of

a statute as applied to that party.” Id. (quoting Anderson, at ¶ 7).

“[W]hen both an as-applied challenge and a facial challenge

are raised, we generally first consider the narrower as-applied

challenge.” SCS Carbon Transp., 2024 ND 109, ¶ 8. “As a general rule

a court will inquire into the constitutionality of a statute only to the

extent required by the case before it and will not anticipate a

question of constitutional law in advance of the necessity of

deciding it, and will not formulate a rule of constitutional law

broader than is required by the precise facts to which it is to be

applied.” Anderson, 2022 ND 144, ¶ 11 (quoting State v. King, 355

N.W.2d 807, 809 (N.D. 1984)); see also Sorum v. State, 2020 ND 175,

¶ 21, 947 N.W.2d 382 (stating “[a] facial challenge to a statute

presents a higher bar than an as-applied challenge”); State v. Morris,

331 N.W.2d 48, 58 (N.D. 1983) (“If the statute as applied to

[appellant] is constitutional, he will not be heard to say that it is

unconstitutional as applied to others.”).

City of Fargo, 2024 ND 236, ¶¶ 11–12.

[¶130] This is a facial challenge to a criminal statute, N.D.C.C. ch. 12.1-19.1. Plaintiffs have not been subject to enforcement proceedings; they assert only

prospective future conduct. Plaintiffs do not assert the challenged statute

implicates rights protected by the First Amendment to the U.S. Constitution. It is long established in our jurisprudence, consistently applied outside the First Amendment context, that we will not entertain a pre-enforcement facial

challenge asserting a statute is void for vagueness based on “various

hypothetical situations.” State v. Schwalk, 430 N.W.2d 317, 321 n.1 (N.D. 1988); see State v. Tibor, 373 N.W.2d 877 (N.D. 1985).

[¶131] Pre-enforcement facial vagueness challenges are allowed in the First

Amendment context because U.S. Supreme Court doctrine creates a buffer zone

around these rights to avoid a chilling effect on certain constitutionally protected activity. United States v. Hansen, 599 U.S. 762, 769–70 (2023) (explaining

overbreadth doctrine is justified because “it provides breathing room for free expression” from laws that “may deter or ‘chill’” free speech). Outside the First Amendment context, we have not applied overbreadth doctrine or the chilling

effect doctrine to invalidate a statute.3 Were we to permit pre-enforcement

challenges premised on hypothetical future conduct here or in other non-First

Amendment contexts, every statute would be vulnerable to challenge on the

basis of contrived hypotheticals reminiscent of law school exam questions

3 The majority opinion cites several cases for the proposition that stricter vagueness applies to

guard against a chilling effect, but all consider only First Amendment claims. Majority, ¶ 30. Overbreadth and chilling effect are closely related and are strong medicine we should not lightly expand beyond First Amendment free speech rights where doctrine recognizes that harmful speech is often countered by more speech in response. See United States v. Alvarez, 567 U.S. 709, 727 (2012) (“The remedy for speech that is false is speech that is true.”). “[I]nvalidation of legislation under the overbreadth doctrine is ‘manifestly, strong medicine’ which should be used ‘sparingly and only as a last resort,’ and . . . ‘the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.’” City of Fargo v. Salsman, 2009 ND 15, ¶ 25, 760 N.W.2d 123.

specifically crafted to test the limits of a statute. Every criminal statute

necessarily demarcates permissible and impermissible conduct. “There is little doubt that imagination can conjure up hypothetical cases in which the meaning

of these terms will be a nice question. The [objective], however, is not . . . [the] wholly consistent academic definition of abstract terms.” Olson, 305 N.W.2d at 829. If the Court were to generally permit facial challenges premised on

hypothetical scenarios, it would eliminate rational basis review as a practical matter because unless a regulation contains every exception the court or a

creative litigant can dream up, it will be facially unconstitutional for all

purposes. See Planned Parenthood v. Reynolds, 975 N.W.2d 710, 736 (Iowa 2022)

(describing this as “rational basis deference in reverse”).

[¶132] The Plaintiffs argue that the statute is vague in some hypothetical

scenarios and, as a result, ask us to declare it facially invalid for all scenarios. Where a facial challenge concerns a criminal statute, the U.S. Supreme Court has recently repeated that the statute will be upheld unless there is no set of

circumstances in which the statute could be constitutionally applied. Rahimi, 602 U.S. at 693 (upholding ban on firearm possession by those subject to restraining order because “the Government need only demonstrate that Section 922(g)(8) is

constitutional in some of its applications”); City of Chicago v. Morales, 527 U.S. 41 (1999); United States v. Salerno, 481 U.S. 739 (1987). Our decisions casting doubt on Salerno’s “no set of circumstances” standard for facial challenges arose in the context of equal protection and takings challenges to non-criminal statutes.

Aamodt, 2018 ND 71, ¶ 38 (rejecting equal protection challenge in a single

conclusory paragraph, reasoning that for claims under the challenged damages

cap (i.e., when the cap did not apply), there was no differential treatment

between claims and a constitutional application sufficient under Salerno); Sorum, 2020 ND 175, ¶¶ 22–24 (rejecting application of Salerno standard under gift

clause challenge where statute required payment of both lapsed and enforceable claims); Nw. Landowners Ass’n, 2022 ND 150, ¶¶ 13–15 (rejecting application of Salerno to defeat facial challenge where the statute completed an unconstitutional taking as to some landowners despite application to other landowners not

resulting in a taking).

[¶133] Our vagueness decisions have always followed enforcement action, and

before considering facial invalidity, we have uniformly required a challenger to first demonstrate that the statute is unconstitutionally vague as to their own conduct—specifically past conduct, not hypothetical future conduct. “In order to invalidate an entire statute for vagueness, however, the statute must be vague in all its applications.” Best Prods. Co., 461 N.W.2d at 100 (applying same analysis to “due process clauses of the state and federal constitutions” and citing Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497 (1982)). “Many of the sections . . . use terms that are understandable to judges,

juries, . . . and police officers. It cannot be said, therefore, that the statute is vague in all its applications. Because this statute is not vague in all its

applications and because challengers are not themselves being prosecuted for

allegedly vague applications of the law, Challengers’ argument fails.” Best Prods. Co., 461 N.W.2d at 100; Tibor, 373 N.W.2d at 881 (“Tibor has no standing to

challenge [the statute] as being void for vagueness. [The statute] does not

regulate or proscribe speech protected by the first amendment, and Tibor has not shown [it] to be impermissibly vague in all of its applications.”). See also Johnson v. United States, 576 U.S. 591, 595 (2015) (concluding residual clause of Armed Career Criminal Act was void in its application to Johnson’s conviction for

unlawful possession of a short-barreled shotgun and also facially vague);

Flipside, 455 U.S. at 495 (“A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A court should therefore examine the complainant’s conduct before

analyzing other hypothetical applications of the law.”). “[S]peculation about

possible vagueness in hypothetical situations not before the Court will not

support a facial attack on a statute when it is surely valid ‘in the vast majority of its intended applications.’” Hill v. Colorado, 530 U.S. 703, 733 (2000). “As always, enforcement requires the exercise of some degree of police judgment.” Id. “In this context, the court must determine whether the statute can ever be applied in a valid manner.” Planned Parenthood of Minn. v. State of Minn., 910 F.2d 479, 483 (8th Cir. 1990) (citing Salerno, 481 U.S. at 745).

The delicate power of pronouncing a [legislative act]

unconstitutional is not to be exercised with reference to hypothetical

cases. . . . [A] limiting construction could be given to the statute by

the court responsible for its construction if an application of

doubtful constitutionality were . . . presented. . . . The strong

presumptive validity that attaches to [a legislative act] has led this

Court to hold many times that statutes are not automatically

invalidated as vague simply because difficulty is found in

determining whether certain marginal offenses fall within their

language.

Id. at 485.

[¶134] The majority opinion offers no limiting construction, only a rejection of the statute without offering an interpretation of the constitutional right against which it would measure future legislation.4 Because the Plaintiffs have presented only hypothetical scenarios and have not demonstrated the statute is vague as

applied to any actual conduct, their facial challenge fails to satisfy our

established precedent. Outside the First Amendment, no precedent of this Court or the U.S. Supreme Court supports a declaration that a criminal statute is

facially void for vagueness without first concluding the statute is vague in the circumstances present in that case.5 We should not do so here.

[¶135] Plaintiffs have argued a constitutional standard for facial challenges that could not apply to other Section 1 claims. They ask us to declare Chapter 12.1-19.1, N.D.C.C., void for vagueness on the basis of uncertainty in hypothetical edge cases. They posit that because the application of statutory exceptions might

4 Even limiting this more stringent vagueness challenge to this Section 1 right is unworkable

because the asserted right is bound together with the other Section 1 rights by the concluding phrase ensuring they “shall not be infringed.” If the Plaintiffs’ hypothetical scenarios demonstrate this statute infringes the natural right of defending life, other hypothetical scenarios will be devised to invalidate statutes implicating the Section 1 right of “acquiring, possessing and protecting property” and the right to “keep and bear arms,” among others. 5 I disagree with my colleagues that Colautti v. Franklin, 439 U.S. 379 (1979), is to the contrary or

that Dobbs overruled its ultimate holding “but not the reasoning,” Majority, ¶ 23, n.1. In my view, Colautti’s application of chilling effect doctrine and other heightened scrutiny borrowed from the First Amendment is an example of a “major distortion in the Court’s constitutional jurisprudence,” Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 814 (1986) (O’Connor, J., dissenting), that Dobbs overruled. Dobbs, 597 U.S. at 286 (explaining the “distortion” of legal doctrines caused by Roe and Casey supported overruling those cases and citing Thornburgh, 476 U.S. at 814).

be uncertain in carefully constructed hypothetical scenarios, the entire statute prohibiting abortion is facially void for vagueness. Our precedent does not

permit that conclusion, and for good reason. Difficult hypothetical scenarios

could be constructed for nearly every criminal offense subject to a recognized defense or exception, including claims of self-defense implicating the Section 1 right of “defending life.” For example, one is guilty of aggravated assault if one willfully causes serious bodily injury to another. N.D.C.C. § 12.1-17-02(1)(a). While the definition of “serious bodily injury” has been upheld against

vagueness challenges, defendants often raise self-defense as a justification,

which requires a determination of whether the use of force was “necessary” and “reasonable under the circumstances.” Just as the potential for disagreement or difficulty in applying the “necessity” or “reasonableness” standards of selfdefense in complex, hypothetical fact patterns would not render the entire

aggravated assault statute unconstitutionally vague, potential difficulty in

applying the exceptions here does not invalidate the core prohibition. But see Majority, ¶¶ 33–45. The prohibition of abortion, before considering the statutory exceptions, is readily understandable. Because Plaintiffs have presented only

hypothetical future conduct outside the First Amendment context, our precedent does not permit this pre-enforcement facial challenge. Plaintiffs have offered no persuasive argument for deviating from our prior cases to allow this preenforcement facial vagueness challenge.

[¶136] As discussed above, we have said in the context of likely success on the merits that the natural rights protected by Section 1 include by necessary

implication a right to abortion when necessary to preserve life or avoid severe physical injury. See Injunction Op., 2023 ND 50, ¶ 31 (“severe, life altering

damage”). If, contrary to the discussion in the previous section but consistent with the majority opinion, we extend our law to permit the pre-enforcement

vagueness challenge on hypothetical facts, we must determine what standard for vagueness applies. We must determine whether this statute is vague in a way

that implicates activity within the scope of the right as discussed above. See State v. Anderson, 427 N.W.2d 316, 319 n.1 (N.D. 1988) (“One area in which significant countervailing policies have been found is within the context of First

Amendment rights, and facial challenges based upon overbreadth and void-forvagueness have been permitted in freedom of speech and association challenges

under the First Amendment.”). Flipside explains that not every law implicating speech receives a more stringent vagueness standard; rather, the court must first determine whether the speech at issue is a type of speech not protected by the First Amendment, such as “speech proposing an illegal transaction, which a

government may regulate or ban entirely.” 455 U.S. at 496. A law that “does not reach constitutionally protected conduct” may still be challenged as vague, but the challenger “must demonstrate that the law is impermissibly vague in all of its applications.” Id. at 497. The same applies here: not every statute implicating abortion implicates protected activity unless one concludes all abortion is

constitutionally protected. By broadly describing the right as “life and health preserving medical care” and failing to anchor it in the context of its enactment, the majority opinion invites strict scrutiny upon the vast range of medical care that might be described as life or health preserving. As in Flipside, the court must first determine whether the challenged regulation implicates protected activity. Because it does not interpret the scope of the right, the majority opinion fails to explain how this statute reaches constitutionally protected activity. Resolution of this question is necessary before applying strict scrutiny to a statute alleged to infringe the right.

[¶137] “[T]he most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights. If, for example, the law interferes with the right of free speech or of association, a more stringent vagueness test should apply.” Flipside, 455 U.S. at 499. The interpretation of Section 1 described above tells us whether

higher clarity is required of this statute. The statute challenged here prohibits abortion only in circumstances that are outside the scope of the right of

“defending life” and “obtaining safety.” The majority opinion’s higher

specificity requirement for any vagueness challenge asserting a constitutionally protected right would implicate a wide range of statutes, including every

criminal statute subject to self-defense (under Section 1 “defending life”), every firearm regulation (under Section 1 right to “keep and bear arms”), every

occupational licensing scheme (under Section 7 right to “be free to obtain

employment”), and beyond to other express rights and implied rights such as

the right to travel and right to parent one’s children. We did not apply a more stringent vagueness test when we considered a vagueness challenge implicating

the “fundamental natural right of a parent . . . [which] has been recognized to be of constitutional dimension.” In re J.Z., 190 N.W.2d at 29, 35–36 (rejecting

vagueness challenge to “without proper parental care or control”) (superseded

by rule on other grounds). There is no reason consistent with our constitutional doctrine why we should apply such a standard only to abortion, and application of heightened specificity for all constitutional rights would overturn decades of vagueness precedent.6

6 Under the Supremacy Clause and vertical stare decisis, we are bound by the strict vagueness

test when a void for vagueness claim is brought under the Due Process Clause of the Fourteenth Amendment and challenges a statute implicating First Amendment rights. If it received four votes, the majority opinion would extend that doctrine in two respects. First, it would adopt it as doctrine for challenges brought under Article 1, Section 12. Second, it would extend it to challenges against any statute implicating rights guaranteed by Section 1, and “other fundamental right[s].” Majority, ¶¶ 31–32. The natural rights guarantees under Section 1 include such rights as “defending life,” “protecting property,” and “to keep and bear arms.” The majority opinion does not limit its logic to medically necessary abortion. Structurally, these Section 1 rights are parallel: they “shall not be infringed.” The logic of the majority opinion would require application of a very stringent vagueness test under which expert disagreement about hypothetical applications of a law would be sufficient to void a statute in all circumstances at least until the next biennial legislative session. Majority, ¶ 11. For example, suppose a person is charged with felony child abuse and asserts a defense under N.D.C.C. § 12.1-05-05, which provides: “a parent . . . or person acting at the direction of [the parent] . . . may use reasonable force upon the minor for the purpose of safeguarding or promoting the minor’s welfare . . . . The reasonable force used may not create a substantial risk of death, serious bodily injury, disfigurement, or gross degradation.” See Simons v. State, 2011 ND 190, ¶ 11, 803 N.W.2d 587. Terms like “reasonable,” “substantial risk,” and “gross degradation” are inherently imprecise, and since parental rights are constitutional in nature, under the logic of the majority opinion, such imprecision requires facial invalidation of the child abuse statute under its elevated vagueness test.

This analogy demonstrates why extending heightened vagueness scrutiny beyond First Amendment contexts would be problematic. Many criminal statutes implicate to some degree a constitutional right (including life, liberty, property, self-defense, bearing arms, and parental rights) and contain terms requiring case-by-case application. Under the standard stated in the majority opinion, these criminal laws would be vulnerable to facial challenges based on carefully constructed hypothetical scenarios, effectively eliminating rational basis review and making legislative drafting nearly impossible.

[¶138] Our ordinary, non-First Amendment standard for vagueness challenges

is as follows. “The root of the vagueness doctrine is a rough idea of fairness. It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.” Woodworth, 234 N.W.2d at 246 (quoting State v. Hipp, 213 N.W.2d 610, 615 (Minn. 1973)). “A law is not unconstitutionally vague if: (1) the law creates minimum guidelines for the reasonable police

officer, judge, or jury charged with enforcing the law, and (2) the law provides a reasonable person with adequate and fair warning of the prohibited conduct.”

State v. Moses, 2022 ND 208, ¶ 17, 982 N.W.2d 321. “[T]he more important aspect of the vagueness doctrine ‘is not actual notice, but the other principal element of the doctrine—the requirement that a legislature establish minimal guidelines to govern law enforcement.’” Kilkenny, 2007 ND 44, ¶ 11 (quoting Kolender v.

Lawson, 461 U.S. 352, 358 (1983)); State v. Hatch, 346 N.W.2d 268, 273 (N.D. 1984) (same).

[¶139] Minimum guidelines guard against “arbitrary and discriminatory

enforcement.” Interest of D.D., 2018 ND 201, ¶ 7 (citing Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)); Johnson, 417 N.W.2d at 368 (rejecting vagueness

argument that statute gave law enforcement “arbitrary discretion in determining what constitutes a violation”). “[A] vague law delegates basic policy matters to those who apply the law, allowing the law to be applied on an ad hoc and

subjective basis.” Stay Op., 2025 ND 26, ¶ 16 (quoting Holbach, 2009 ND 37, ¶ 24); Tibor, 373 N.W.2d at 880. “The requisite of definiteness demands no more than a reasonable degree of certainty.” Woodworth, 234 N.W.2d at 246. “Words or

phrases which might be indefinite in one of their possible senses will not

invalidate the statute where they have a well settled common-law or technical

meaning which can be employed.” Id. “Where a statutory offense corresponds to

a common-law offense, it is sufficiently certain without any definition, since the common-law definition may be employed even in a jurisdiction which has no

common-law offenses as such.” Id.; Kilkenny, 2007 ND 44, ¶¶ 13–17 (explaining

“we expect law enforcement, judges, and juries to weigh numerous factors all

the time” and no objective measurement or “scientific[] test” is required).

[¶140] Vagueness is considered from the perspective of a reasonable person

subject to the law. Simons v. State, Dep’t of Hum. Servs., 2011 ND 190, ¶ 31, 803 N.W.2d 587 (“The statute need not set out in explicit detail all possible factual scenarios that would fall within its reach; it need only give adequate and fair warning, when measured by the common understanding and practice of a

‘reasonable person,’ of the proscribed conduct.”); State v. Tranby, 437 N.W.2d 817, 821 (N.D. 1989) (rejecting vagueness challenge to negligent homicide statute,

reasoning the law could be fairly administered because a “gross deviation from acceptable standards of conduct” is analogous to the standard of reasonable care, a much-used legal test).

[¶141] Serious Health Risk Exception. The Plaintiffs argue the entire statute is void for vagueness because physicians disagree about the “serious health risk” exception. The statute’s prohibition on abortion “does not apply to . . . [a]n abortion deemed necessary based on reasonable medical judgment which was

intended to prevent the death or a serious health risk to the pregnant female.” N.D.C.C. § 12.1-19.1-03(1). The Plaintiffs contend the terms “deemed necessary,” “reasonable medical judgment,” and “serious health risk” are each

unconstitutionally vague, and the definition read as a whole is

unconstitutionally vague due to overlapping subjective and objective standards.

“Serious health risk” means a condition that, in reasonable medical

judgment, complicates the medical condition of the pregnant

woman so that it necessitates an abortion to prevent substantial

physical impairment of a major bodily function, not including any

psychological or emotional condition. The term may not be based on

a claim or diagnosis that the woman will engage in conduct that will

result in her death or in substantial physical impairment of a major

bodily function.

N.D.C.C. § 12.1-19.1-01(5).

[¶142] As a whole, this statute provides minimum guidelines for officers,

judges, and juries to facilitate fair administration and enforcement. A statute’s

use of generalized language is insufficient to establish unconstitutional

vagueness. Stay Op., 2025 ND 26, ¶ 20; Olson, 305 N.W.2d at 828.

[¶143] As to “serious health risk,” this Court rejected a vagueness challenge to the similar terms “serious bodily injury” and “substantial bodily injury” in the context of a criminal prosecution for a Class C Felony (the same offense

classification at issue here). State v. Montplaisir, 2015 ND 237, ¶¶ 27–28, 869 N.W.2d 435. We also rejected a vagueness challenge to the statutory term

“substantial.” State v. Motsko, 261 N.W.2d 860, 865 (N.D. 1977) (“As used in

Section 12.1-18-04, it means ‘significant,’ ‘important,’ or ‘real,’ as distinguished from ‘insignificant,’ ‘trivial,’ ‘nominal,’ or ‘imaginary.’“). As to “deemed

necessary,” the Plaintiffs’ argument—that doctors may reach different

conclusions about what the term means—is insufficient to show it lacks the

minimum guidelines required for fair administration and enforcement. See In re J.Z., 190 N.W.2d at 36 (rejecting claim that “proper parental care or control” is unconstitutionally vague). Some discretion is inherent in administration and

enforcement of the law—what vagueness doctrine prohibits is such broad

discretion that arbitrary and discriminatory enforcement will follow. Gonzales v. Carhart, 550 U.S. 124, 150 (2007) (quoting Kolender, 461 U.S. at 358) (rejecting arbitrary enforcement argument in vagueness challenge where “[i]t cannot be

said that the Act vests virtually complete discretion in the hands of law

enforcement to determine whether the doctor has satisfied its provisions”

(cleaned up)); Morales, 527 U.S. at 61, 63 (concluding statute was void for

vagueness where anti-loitering statute gave a “vast amount of discretion” in its enforcement); Thorburn v. Austin, 231 F.3d 1114, 1121 (8th Cir. 2000) (“Police officers will have to use discretion to determine whether an activity is picketing and whether it is focused, but enforcement of all laws involves some

discretion.”).

[¶144] Chapter 12.1-19.1, N.D.C.C., provides adequate and fair warning to those attempting to comply. The individual terms and the definition as a whole are

“understandable to a reasonable person, and provide adequate warning of the

conduct prohibited.” Montplaisir, 2015 ND 237, ¶ 28. We have never held “a

criminal statute [is] vague solely because close cases may exist under its

requirements. That problem is addressed by requiring proof of a specific

violation beyond a reasonable doubt, not by invalidating the statute for facial vagueness.” Duhe v. City of Little Rock, 902 F.3d 858, 864 (8th Cir. 2018). “Many statutes will have some inherent vagueness, for ‘[i]n most English words and

phrases there lurk uncertainties.’” Schwalk, 430 N.W.2d at 320.

[¶145] The serious health risk exception does not present a clear answer to every imaginable situation. No statute can. This statute provides minimum guidelines to avoid arbitrary and discriminatory enforcement, and also provides fair

warning to a reasonable person about what conduct is prohibited.

[¶146] Sex Offenses Exception. The Plaintiffs argue the sex offenses exception is unconstitutionally vague because it does not provide fair notice to physicians. Chapter 12.1-19.1 does not apply to “[a]n abortion to terminate a pregnancy that based on reasonable medical judgment resulted from gross sexual imposition,

sexual imposition, sexual abuse of a ward, or incest, as those offenses are defined in Chapter 12.1-20, if the probable gestational age of the unborn child is six weeks or less.” N.D.C.C. § 12.1-19.1-03(2). They argue a physician is unable by

“reasonable medical judgment” or otherwise to determine whether a pregnancy

is the result of a sex offense as defined in Chapter 12.1-20. “Reasonable medical judgment” is also a defined term. It “means a medical judgment that would be

made by a reasonably prudent physician who is knowledgeable about the case

and the treatment possibilities with respect to the medical conditions involved.” N.D.C.C. § 12.1-19.1-01(4). As pointed out by the State at oral argument,

however, physicians routinely rely on unverified patient self-reports in making medical judgments. We have upheld against vagueness challenge similar

definitions. In re Maedche, 2010 ND 171, ¶ 16, 788 N.W.2d 331. A vagueness

challenge considers fair warning to a reasonable person. The minimum

guidelines the statute sets for fair administration is sufficient to curtail arbitrary and discriminatory enforcement. Law enforcement, judges, and juries have

sufficient guidance to consider the fact question of whether in a specific

enforcement scenario a reasonably prudent physician had such knowledge

sufficient to support a reasonable judgment that the pregnancy resulted from a sex offense. Similarly, a physician has fair warning that to satisfy the sex offense exception requires sufficient credible information to satisfy a reasonably prudent physician that a sex offense occurred. While perhaps a more precise formulation

could have been enacted, perfectly precise is not the standard. Schwalk, 430

N.W.2d at 320 (“But this prohibition against excessive vagueness does not

invalidate every statute which a reviewing court believes could have been

drafted with greater precision. Many statutes will have some inherent

vagueness, for ‘[i]n most English words and phrases there lurk uncertainties.’”).

[¶147] The district court erred in concluding Chapter 12.1-19.1 is

unconstitutionally vague and further erred in concluding N.D. Const. art. I, § 1 protects a right to abortion broad enough to conflict with Chapter 12.1-19.1.

Therefore, the judgment of the district court declaring N.D.C.C. ch. 12.1-19.1 unconstitutional on its face should be reversed, without prejudice to any future as-applied challenges.

[¶148] Jon J. Jensen, C.J.

Jerod E. Tufte

d/b/a Red River Women’s Clinic, et al. v. Wrigley

Authorities cited

Opinion · public domain