In 2023, North Dakota enacted a total abortion ban with limited exceptions in the case of death, serious health risks, rape, and incest. After a group of physicians providing abortion and reproductive healthcare services to North Dakotans challenged the ban’s constitutionality, the North Dakota Supreme Court temporarily stopped the ban from taking effect. In 2024, a state district court judge permanently struck down the ban, holding that it was unconstitutionally vague and violated the state constitution’s Inalienable Rights Clause, which provides that “[a]ll 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; [and] pursuing and obtaining safety and happiness.” The state appealed the decision to the North Dakota Supreme Court.  

CAC filed a brief in support of the plaintiffs explaining that the text, structure, and history of the state’s Inalienable Rights Clause protect the fundamental right to reproductive autonomy, including abortion. 

First, our brief explains that North Dakotans adopted the Inalienable Rights Clause to enshrine in their founding charter a sweeping protection for individual rights. The Framers of the 1889 Constitution felt a kinship with the pre-Revolution American colonists who wrote the Declaration of Independence, analogizing their struggle for statehood to the colonists’ fight for freedom from the Crown and their demand for the guarantee of Lockean natural rights. To convey the Clause’s expansive protections, the Framers deliberately chose broader language protecting individual rights than the charters they used as models and made the Inalienable Rights Clause the first section of the first article of their Constitution. And over the past century and a half, the people of North Dakota have voted time and again to retain or expand the breadth of the clause. Indeed, over 160,000 North Dakotans resoundingly repudiated the government’s attempt to intervene in their personal medical decisions about pregnancy by rejecting the Legislative Assembly’s 2014 proposal to add a new section to the Declaration of Rights providing that “[t]he inalienable right to life of every human being at any stage of development must be recognized and protected.”  

Second, our brief explains that the Inalienable Rights Clause protects the right to reproductive autonomy. Time and again, the North Dakota Supreme Court has emphasized that the Clause is a sweeping guarantee of personal freedom in nearly all facets of life, including child rearing, the home, bodily autonomy, and health in all of its aspects. “Liberty,” the Court has said, includes “the opportunity to do those things which are ordinarily done by free [people].” And the Court has explained that the “pursuit of happiness” “must comprise personal freedom, . . . the right to follow one’s individual preference in the . . . application of [their] energies, . . . and the right to enjoy the domestic relations and the privileges of the family and the home.” Consistent with these principles, the Court has adopted the foundational concept, stated by Justice Cardozo, that “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body.” Indeed, the idea that a state constitution’s individual rights clause protects reproductive rights is far from novel. Multiple state courts have concluded that the right to reproductive autonomy is an axiomatic element of life, liberty, safety, and happiness. The North Dakota Supreme Court should do the same.