An Opinion in Search of a Legal Foundation: Majority’s Reasoning in Wrigley II
The decision in Access Independent Health Services Inc. v. Wrigley represents a significant step in reinforcing North Dakota’s constitutional framework and the Legislature’s authority to regulate abortion. By not ruling the state’s abortion ban as unconstitutional, the North Dakota Supreme Court recognized that the Legislature has the constitutional power to protect unborn life and to establish reasonable medical expectations, even in the face of challenges asserting vagueness or uncertainty. This ruling strengthens the state’s ability to defend life and clarifies the scope of judicial review under the North Dakota Constitution.
Abortion Ban Restored in North Dakota
On November 21, 2025, the Supreme Court of North Dakota issued their opinion in Access Independent Health Services Inc. v. Wrigley. In order for a legislative enactment to be declared unconstitutional by the Supreme Court of North Dakota, four out of five members of the Court hearing the case must agree it is unconstitutional. Here, only three of the five so concluded. Justice Crothers, Justice McEvers, and District Judge Narum (sitting in place of Justice Bahr, who had disqualified himself), voted in favor of the ban being unconstitutional, and Chief Justice Jensen and Justice Tufte ruling in favor of it being constitutional. The law, N.D.C.C. § 12.1-19.1-01, states that it is a class C felony for any person, other than the pregnant woman upon whom the abortion was performed, to perform an abortion. There are exceptions that include abortions preventing death or a serious health risk to the pregnant woman, and rape that is reported before six weeks of gestation.
The Majority Opinion and the Vagueness Claim
Justice Crothers wrote for the majority. The majority’s first point is that the law is unconstitutionally vague in how it relates to when an abortion can be performed to preserve the life and health of the mother. It begins stating that one of the State’s expert witnesses testified about various health conditions that mothers can experience in pregnancy and how they can increase expectant mothers’ risk of mortality. The doctor testified that it may be difficult to predict when those conditions would put the mother’s health and life at risk. In Wrigley v. Romanick (“Wrigley I”), this Court acknowledged there are severe complications that often arise from pregnant women in emergency rooms.
The statute itself defines the terms “abortion,” “physician,” “probable gestation age of the unborn child,” “reasonable medical judgment,” and “serious health risk.” It also states that the law does not apply when an abortion is necessary to prevent the death or a serious health risk to the mother and rape if the probable gestational age of the unborn child is six weeks or less.
The North Dakota Constitution provides that the government cannot deprive any person of life, liberty, or property without due process of law. The majority claimed that the language of the North Dakota abortion statute violated this provision because it is “vague,” meaning it is not sufficient to put providers on notice of when they may or may not perform an abortion to protect the mother’s health. It concluded that the vagueness they saw in the statute, when combined with the C felony criminal charges for violations, would improperly deter physicians from giving constitutionally protected care. The majority also pointed to the Court’s prior ruling last year that the North Dakota Constitution protects “a woman’s fundamental right to receive an abortion to preserve [her] life or health.”
Vagueness Doctrine and Legal Standards
To survive a vagueness challenge, the law needs to 1) create minimum guidelines for a reasonable police officer, judge, or jury charged with enforcing that law and 2) give a reasonable person adequate and fair warning of the illegal 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. The bar for the strictness of the vagueness test rises when it inhibits the exercise of a constitutionally protected right, and when there are severe penalties, the specificity required is higher.
Medical Malpractice, Vagueness, and Professional Judgment
Vagueness exists in legitimate ways in a variety of legal provisions, and it is purposeful. For example, it allows prosecutors to make discretionary calls when charging out a crime. The term substantial bodily harm is “a substantial temporary disfigurement, loss, or impairment of the function of any bodily member or organ.” The differences between harm in the North Dakota criminal code allow for the prosecution to make discretionary choices (substantial bodily injury v. serious bodily injury) in what type of crime they charge out (i.e. simple assault v. assault) and/or allow to close a case by plea agreement. The definitions are additionally purposefully vague because by creating a list of what substantial bodily injury is, it indirectly tells you what it is not. If substantial bodily harm had a list of what harm constitutes as substantial, such as a broken nose, it may be unintentionally excluding other injuries that may fall into that category that was not contemplated at the time of enactment. The majority harps on the fact that experts could not define “serious health risk.” Experts stated that it is a subjective standard and depends on reasonable medical judgment. To leave discretion to the experts in that field, like with prosecutors, is not uncommon.
Another example of vagueness in the law is the standard in medical malpractice cases. The definition of “health care negligence” in North Dakota law is “an act or omission by a health care provider which deviates from the applicable standard of care and causes an injury.” That is vague because the legislature cannot reasonably write out the standard of care for each individual type of medical practice and procedure in North Dakota. Similarly, if the statute were to list out every act of health care negligence, it may unintentionally be leaving others out. In this instance, and in tort law in general, the reasonable person standard is “whether someone acted with care as the average person would have in those circumstances.” Both the standard of care in medical malpractice cases and reasonable person standard in tort cases is widely used and give a reasonable person and physician notice that their conduct is against the law.
The majority states that when the consequences are severe, such as criminal penalties, the standard for vagueness is heightened. A law using the substantial bodily term, for example the crime of assault, could result in jail time. The punishment takes away a person’s constitutional right to life and liberty but is justified because they committed a crime. Though the remedy in tort law and medical malpractice actions specifically is a civil action, a physician can lose their medical license and might have to pay out hundreds of thousands of dollars. That is not jail time, but that is not inconsequential. Simply because a law has vagueness for discretionary purposes in it does not mean it should be struck down, especially when the statute itself gives clear notice to a reasonable person what conduct is and is not prohibited.
State v. Holbach and the ‘No set of Circumstances’ Standard
The majority wrestled with the concept of “is the law unconstitutional in all possible applications?” This is known as the “no set of circumstances” standard. In State v. Holbach before this Court in 2009, Holbach argued that the North Dakota stalking statute was vague because it did not provide adequate warning of prohibited conduct and fails to prevent arbitrary and discriminatory enforcement and that it was overbroad because it criminalizes constitutionally protected activity. He argued that because he and the victim were residents of the same town, they were likely to run into each other frequently conducting everyday business. The statute states that stalking is “an intentional course of conduct directed at a specific person which frightens, intimidates, or harasses that person, and that serves no legitimate purpose.” Questions of whether an activity is constitutionally protected is a question of law that courts answer. Holbach stated he had a right to travel, but this Court stated that constitutional right is not absolute and may be restricted. This Court then evaluated Holbach’s individual conduct and concluded his actions were not constitutionally protected because his right to travel had been restricted by a judicial order. This Court stated that they rejected his claim because a “reasonable person would know [his] conduct was prohibited by the statute.”
Justice Tufte points out that the stringent vagueness standard the majority extends to natural rights guaranteed by Article I, Section 1 has previously been reserved for First Amendment rights that receive additional protection of the chilling effect doctrine. In order to know if the stricter vagueness standard can be applied, one must know the scope of the Section 1 rights. To determine the scope of the rights, one must find the ordinary meaning of text to the people of the state in how it was commonly understood at the time of enactment. Plaintiff’s argue that women have a constitutional right to abortion and bodily autonomy. Justice Tufte engages in analysis of the plain meaning, ordinary and commonly understood meaning of Section 1 and the history of abortion in the state. He states that Section 1 includes an individual right to seek medical care without risk of criminal prosecution, when reasonably necessary to preserve the individual’s life. Section 1 does not imply a right to abortion, and despite public opinion shifting in the direction that there is one, only a constitutional amendment can create it.
Application to the Abortion Statute
Here, the abortion law in place specifically tells a reasonable person, and especially a reasonable OB/GYN, what an abortion is under this statute and what it is not. It states that an abortion is, in summary, using any device with the intent to end the pregnancy. The law is not applicable to removing a dead unborn child caused by a spontaneous abortion and treating a woman for an ectopic or moral pregnancy. It then lists the definition of serious health risk to determine if a woman needs an abortion: that is, if it will cause her “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 a woman will engage in conduct that will result in her death or in substantial physical impairment of a major bodily function.” These terms are square in terms of vagueness with the substantial bodily injury term discussed in the criminal code.
The majority states that “a vague abortion regulation has the potential to restrict the provisions of constitutionally protected medical care.” They then launch into an extended discussion and claim the law would chill doctors’ abilities to make calls when and if an abortion should take place. This Court in Wrigley I stated that the North Dakota Constitution provides a fundamental right to receive an abortion to preserve a pregnant woman’s life or health (i.e. serious bodily injury or death). They declined to write to the extent of what scope of health risks may give rise to abortion to prevent serious bodily injury or death. The new law had additions to fix the issues this Court had in Wrigley I.
Medical Malpractice
The State argued to the Court that “reasonable medical judgment” is well-understood by the medical community because it is the standard in medical malpractice cases. In its opinion, the majority stated that medical malpractice and other statutes require proof of a specific intent coupled with a knowledge of the result. It tried to differentiate that from the abortion law - i.e. various terms: “abortions” are criminally done when “with the intent to terminate” a pregnancy, and “with knowledge” that the unborn child is likely to die. Adding another element to the crime does not make the statute “more vague.” It makes the law more narrowly tailored to the compelling government interest of protecting unborn life.
Self-Defense Argument
The majority then goes into the deadly force by physicians statute. The court does not provide an analysis on that specific statute, but instead, begins discussing the general self-defense statute. In self-defense, the State has rejected the “objective reasonableness standard” and adopted a subjective one.
In Wrigley v. Romanick, 2023 ND 50, 988 N.W.2d 231, (“Wrigley I”) Justice Tufte referenced self-defense when talking about abortions as it relates to serious health risks or death of the mother. The new law specifically carves out these exceptions, so for the majority to still emphasize this when only 8% of pregnancies involve complications, if left untreated, may harm the baby or the mother, does not logically follow.
In the self-defense argument, the majority brings up that this Court previously ruled that “the reasonableness of defendant’s belief must be viewed from the standpoint of the 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.” The majority attempts to conflate the deadly force by physician statute with the general self-defense statute. The exceptions, again, of seriously bodily injury or death are already included in the statute. The self-defense statute states that “a person is justified in using force upon another to defend himself against danger of imminent unlawful bodily injury . . A person is not justified if he intentionally provokes unlawful action by another person to cause bodily injury or death to such other person.”
The majority specifically stated on page 24 that there is a “conflict of law” between the self-defense statute and the abortion statute because a “physician who acts with an honest but mistaken belief that an abortion was necessary to protect the life or health of a pregnant person . .” will be criminalized. The majority then states that will not be making an assessment on how or whether the laws could be reconciled. They begin with an analysis on self-defense but then decline to do an application.
The deadly force by physician standard for physicians states that “if the force is necessary to administer a recognized form of treatment to promote the physical health of a patient and if the treatment is administered in an emergency; with the consent of the patient . . .” The abortion statute already provides for these exceptions. The majority quotes Justice Tufte in Wrigley I, but in that instance, Justice Tufte was referring to the mother’s right to have an abortion for her health and safety in life-threatening circumstances. Justice Tufte stated in Wrigley I that the Court does not decide what scope of health risks may give rise to abortion as medical self-defense.
Presumably, the argument is that if the woman has a right to have an abortion when she has serious health risks or risk of death, the physician has the right to perform those services through defense of others. That is already reconciled in the law. The physician has the medical expertise to know when a patient is at risk of serious health risks or death. A specific definition of serious health risks cannot be made because there are so many different types of complications and each individual circumstance is different. That is why a list cannot be created, and it is left to the discretion of the physicians who have the expertise to know when a woman is facing life threatening complications and can make decisions accordingly. The majority then discusses self-defense in general, which is a different standard from deadly force by physician standard.
To raise self-defense against an unborn baby initially (outside the scope of serious harm or death) is illogical when 97.6% of pregnancies occur from consensual sex, and in the statute, there is an exception for rape before six weeks of gestational age. The self-defense statute, additionally, refers to “imminent” - which means that “something is about to happen or occur very soon.” As a doctor testified to as seen in the majority’s opinion, some serious health-related risks are imminent, and in those moments, the statute specifically allows for an abortion that would put the mother’s life at risk.
The emphasis on the “viewpoint of the defendant” applies in stances where, generally, the aggressor has the capacity to form the mens rea to act in a way toward the victim that caused an imminent potential of unlawful bodily injury. There are of course cases where the aggressor does not have the capacity to form the means rea (such as mental capacity, age, etc.), and in this instance, the unborn child surely does not have the capacity to form the mens rea to harm the mother. If the majority ignores the fact that in order to have self-defense, you have to be defending against a human being aggressor, whether competent or not, they are indirectly stating that an unborn child is not a life. The aggressor needs to be the one to act, and here, the mother was the one who engaged in activity whereby she knew the potential for a life would occur. The unborn child is not the aggressor or responsible for their creation; it occurred because the mother and father had intercourse. Even if throughout the pregnancy, complications from the pregnancy is a superseding cause to break the chain of connection to intercourse, the exceptions in the statute to preserve the mother’s health and life remain.
The Majority’s Strongest Argument - and Rebuttal
The majority’s strongest argument is that physicians may hesitate to act in emergencies if they fear criminal prosecution, potentially delaying treatment until it is too late to result in irreversible harm. Medical emergencies genuinely can evolve rapidly and without clear warning. The majority claims that uncertainty demands more legal protection for physicians, not less. This reasoning is flawed because:
1) The statute already includes clear expectations permitting abortion to prevent death or seriously bodily injury
2) Emergency medical uncertainty exists in countless treatment contexts, yet vagueness is routinely tolerated in urgent care standards
3) Self-defense doctrine (outside life-threatening complications to the mother) structurally cannot apply where there is no unlawful aggressor, no intent, and no adversarial conduct
If criminal law can rely on reasonable judgment to distinguish murder from manslaughter or medical malpractice from acceptable care, it is inconsistent to argue that doctors cannot interpret medical judgment within abortion law.
Conclusion
The North Dakota Legislature acted within its constitutional authority in defining abortion restrictions and crafting exceptions that safeguard the life and physical health of the mother. The state has a compelling interest in protecting unborn children, and the electorate maintains the power to shape policy through elected representatives. The Court’s role is not to replace legislative judgment with judicial preference, but to ensure laws meet constitutional standards – which the statute clearly does.
The ruling reaffirms that the proper place for abortion regulation is the democratic process. Judicial restraint and respect for state sovereignty demand fidelity to constitutional structure, not certain doctrinal expansion. North Dakota’s abortion law reflects a legitimate moral and government interest in protection life, and it stands on firm constitutional ground.
