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Fargo Judge Enjoins State From Enforcing Another Draconian Law PDF Print E-mail
Written by Chet   
Thursday, 01 August 2013 08:01

Here's the decision, for your Thursday perusal...

Preliminary Injunction from July 31, 2013 by northdecoder

 

My favorite parts of these decisions are the parts where Judge Corwin outlines, very candidly, his perceptions of the credibility and qualifications of the "experts" hired by the State of North Dakota.  Read footnote #1, for example.  To understand what the judge is explaining, you'd probably have to read his earlier decision.  If you need help finding that decision, let me know.  (It is and was worth the read.)  But also keep reading as Corwin explains the problems with the State's expert's affidavit, in which he expresses opinions he's clearly not qualified to make, about things he seems to know nothing (or little).  (See the botom of p. 5 through page 7, for example, and footnotes 3 through 10.)

It's also interesting that Judge Corwin notes video testimony from Republican legislator Ricky Becker, and provides the URL for the video of his floor testimony.  

Also interesting is Corwin's discussion of the requirement, in North Dakota's new law, that doctors have admitting privileges at a local hospital, and that they have privileges to perform abortion procedures at those hospitals.  Then he discusses how there are only three hospitals in the Fargo/Moorhead area.  One is a Catholic hospital where no abortions can be performed.  Another is the VA hospital, that's barred (by federal law) from performing abortions.  The third -- presumabely Sanford -- only bestows admitting priviles to doctors who "generate a specified minimum volume of business -- the provision of inpatient services to a minimum of five patients in the last twelve months."  Well, of course, the Fargo Women's Clinic hasn't provided Sanford with five patients in the last twelve months, so its physicians wouldn't qualify.  (And the law's drafters surely knew this.)  

Footnote 11 is also interesting.  Governor Dalrymple, when he signed the bill into law, referenced the burdensome "added requirement that the hospital privileges must include allowing abortions to take place at [that] facility."  He links to Dalrymple's statement to that, available online.  Then he points out the State's disingenuous effort, in the legal proceedings, to ignore that requirement.  

It's another interesting, well-written decision.  It's only 14 pages long.  You should read it.

 

 

 


Comments (33)add comment

sanne said:

Interesting . . . yes. Well-written . . . no.
The decision amounts to not much more than a critique of the legislation rather than well-reasoned argument on why the legislation is unconstitutional. He mostly lists reasons why the legislation is bad and then "hangs his hat" for the decision on his previous ruling that there is a right to an abortion in the state constitution.

It's not the judge's place to decide whether the policy is good or bad. That job belongs to the legislature.

His opinion on the policy question only has bearing because he has constructed a right to abortion subject to strict scrutiny. It is doubtful, however, that the state supreme court will agree with that construction.
 
August 01, 2013
Votes: -1

Chet said:

That's insanne.
I have to wonder whether you've actually read either his previous memorandum decision, or the one issued yesterday, or if, perhaps, you just had your Bishop explain them for you. No offense, but there's a lot more to both of these court orders than what you seem to understand. Or not understand, as it were.
 
August 01, 2013
Votes: +0

Bravo said:

Those footnotes are awesome
My favorite is the reference to bad dentists hasn't prompted legislation to close all dental clinics.
 
August 01, 2013
Votes: +1

sanne said:

...
Chet, do you really think that four of the five justices are going to find a right to abortion in the state constitution?

Unless they do, the law is subject to the rational basis test. Corwin may have found problems with the law, but they don't overcome the deference that is supposed to be given to the legislature under that test.
 
August 01, 2013
Votes: +0

Chet said:

Short answer...
Your question would be easy to answer with a simple "yes," but I don't know if you understand how complicated your question is. I'll try, somewhat briefly, to break it down for you.

Whether you like it or not, the United States Supreme Court has already decided there is a federal constitutional right for women to have reproductive freedom, or "a right to abortion," as you call it. As a matter of law, our state constitution cannot provide less protection than the federal constitution provides to pregnant women. And we have a legal principal called "stare decisis" which means the thing has already been decided and future courts have to honor that decision. Courts give deference to legal precedent; especially from higher courts.

The abortion issue has already been decided by the federal courts, and so we know -- as a matter of fact and law -- that there is a federal constitutional protection, and the state constitution provides AT LEAST that same protection. (Side note: If you'd read Judge Corwin's first memorandum decision, I probably wouldn't need to write this part.) So, yes, I believe four or five North Dakota Supreme Court justices will find that there is a "right to abortion in the state constitution." Because if they didn't, then they would be dishonoring the Federal constitution and the oath they swore to uphold it.

Now, I know the governor and many legislators took that same oath, but the governor is not a legal scholar. Neither are most of the members of the legislature. So they can -- and should -- (and do) plead ignorance. The Supreme Court justices don't have the freedom to claim they are ignorant of the law.

But answering that poorly formulated question from you is too easy. I don't think that's what you would have asked if you'd read both decisions and understood them. If you'd read both decisions and understood them, you would have asked me whether I "really think four of the five justices are going to find a GREATER right to abortion in the state constitution than is in the federal constitution?" Unlike the question you asked, that would actually be a worthwhile question and just slightly more complicated to answer.

My answer to that question would be this: You should read Judge Corwin's first decision. You should also read the 1983 US Supreme Court case of "Michigan v. Long." And you should try to familiarize yourself with some basic principles of state constitutional law. And I don't mean to sound condescending or like I'm a big know-it-all (because I don't), but a lot of people don't understand that there's a difference between state constitutions and federal constitutions. A lot of people don't understand that state constitutions HAVE TO provide at least the same freedoms as the federal constitution. The big question ends up being this: Are state constitutions a big, redundant, waste of time and paper. When, for example, the language in the state constitution dealing with a particular freedom is different from the language dealing with that same freedom in the federal constitution, is it rational to just assume the state constitution's framers meant the exact same thing as the federal constitution's framers?

If you would read both of Judge Corwin's decisions, you'd understand that North Dakota has some unique state constitutional provisions when it comes to private, family matters. These are state constitutional protections in private family matters that don't have anything to do with the federal constitution. I'll give two examples: As a matter of federal constitutional law, if you are a parent and your parental rights are being terminated, you don't have the right to court-appointed counsel. But! Our state supreme court has interpreted North Dakota's constitution to provide greater rights, as parents, than those afforded under the federal constitution. In North Dakota, if your parental rights are being terminated and you can't afford to hire a lawyer, the court will appoint one for you.

Here's another one. Say you are a parent and the legislature passes a law giving visitation rights regarding your child(ren) to your parents. Let's say you HATE your parents because they were verbally and physically abusive to you and did a lot of drugs. Or you just hate them. Let's say you haven't talked to them in 10 years. Let's say you don't want your children to be exposed to your rotten parents. Our legislature, years ago, passed a law giving your rotten parents special rights to access your children. Our Supreme Court, smartly, put some serious limits on those "grandparental rights." In doing so, they relied upon the state constitution because the state constitution provides greater rights than the federal constitution.

Judge Corwin looked at those cases and some other ones and decided that we have a trend in North Dakota of providing greater constitutional protections for parenting matters than does the federal constitution. That's where the strict scrutiny standard comes into play.

His decision(s) on state constitutional grounds aren't crazy. They're not "out there." They're actually -- as I've already noted -- fairly well written. (Though he misspelled "disdain;" I'll give you that.)

But Corwin also analyzed these laws under the rational basis standard, too. He looked through the facts/evidence pretty vigorously. You don't see a lot of 54 page district court rulings in North Dakota state district courts. (I've seen one district court judge issue opinions that were one sentence long.) There are a lot of factual findings in those decisions. The Supreme Court doesn't get to tinker with those facts. When the judge finds that the State's experts aren't credible... that is a fact on appeal. Facts aren't reversed on appeal. The Supreme Court isn't in the business of looking at trial court factual findings and reversing them unless there's no evidence to support them. And it seems pretty clear, from these decisions, that there is evidence supporting those decisions.

So, yeah; If the five justices on the Supreme Court are going to honor precedent and honor the factual findings by Judge Corwin, and honor the oath they've taken, and be intellectually honest, I don't think they'll have much choice but to affirm his decision(s), regardless of whether they find a GREATER state constitutional protection or not.

But that's just my opinion.
 
August 01, 2013
Votes: +1

sanne said:

...
Numerous state courts and legal scholars have disagreed with your reading of Michigan v. Long and concluded that state courts are not required to interpret a state constitution as providing the same right protected by the federal constitution. I won't waste time listing them here as I am sure we will see them in the AG's brief and probably supporting amici briefs, except to say that Corwin's reliance on State v. Herrick is flawed. There is a difference between requiring that a state constitution be read to include a federal right - which is how Corwin reads it - and interpreting a state constitution as depriving someone a federal right - which is what Herrick precludes.

As to whether Corwin analyzed the laws under the rational basis standard - he clearly did not. He may come to the same conclusions, but he would have to take a more rigorous view of the facts on remand than he did in these rulings. (We should also not presume that his findings in these two rulings address all the facts presented.)
 
August 01, 2013
Votes: -1

Chet said:

Wait... what?
Let's face it: It's not that Judge Corwin didn't analyze the draconian new laws under the "rational basis" standard; it's that he did, but you don't like the facts, the law or the outcome. Your circuitous, nonsensical arguments could not possibly make sense to anybody outside your rabbit hole.

You've officially met or exceeded your "Chet's willingness to engage with trolls" allotment.
 
August 01, 2013
Votes: +1

jake said:

Let me tell you what's draconian
Ripping a living baby out of a woman's womb and calling a woman's right. Why is it legal to charge someone who murder's a pregnant woman with double homicide but yet we don't charge a woman for killing the baby herself?
 
August 01, 2013
Votes: -1

Chet said:

A thought exercise for Jake...
Imagine for a moment, Jake, that you are not a typical right winger who's physiologically and emotionally incapable of feeling empathy for someone not within one degree of you on the Table of Consanguinity. Imagine that you aren't a religious zealot, aggressively trying to impose your religion on others. Imagine you're a woman who's been sexually assaulted and now you've got the product of that rape, a bundle of cells splitting and growing, inside you. Now, imagine you don't want to ever have to deal with the product of that rape, or your rapist, ever again.

Aw... who am I kidding?!? I lost you in the first sentence.

Never mind.
 
August 02, 2013
Votes: +0

Jake said:

...
I completely understand that you are trying to go around my question. I also like how you stay away from calling it a baby. You call it a bundle of cells multiplying. At what point does it become a baby? When it's born?

I didn't bring any religion into it. Nor am I trying to. I just think that it's a human being. A baby. Also did you know that less than 1% of abortions are due to Rape, Incest and risk of the mother?

Chet I would love to have this debate here. Without trying to take jabs at each other personally. I know you love to insult anyone who doesn't agree with you...but let's try.
 
August 02, 2013
Votes: +0

Chet said:

Okay, Jake... I'll answer your questions if you'll answer mine.
What about when the bundle of cells is not a baby? Like when it's a tumor with baby-like qualities. Like when it's a bundle of cells from the genus "homo sapiens". What then? Who should decide whether the woman has to try to survive 9 or 10 months? The woman and her doctor? Or a bunch of old, white religious zealots with no subject-matter (or personal) knowledge who occasionally hang out in the Capitol Building?

Why do you think you and your old, white, male buddies should be able to get involved with the medical decisions of women -- women you don't know and you don't own -- and their doctors?

This is simply something upon which we will not agree. Many people, including me, will never adopt your view -- whether based upon religion or otherwise -- that a zygote is a baby. We won't adopt your view that 10 cells are a baby. We won't adopt your view that a bundle of 100 cells is a baby. We won't adopt your view that a 3-weeks-along fetus is a baby. We won't adopt your view that an ectopic tumor is ever a baby. We won't agree with you that a woman should be forced by religious fundamentalists to carry to term the offspring of a rapist, and then give him visitation rights. Whatever it is in your make-up (and I believe it is religious fundamentalism) that makes you think otherwise, is simply something that is not a part of everyone else's make-up.

What's frustrating is that people like you say you hate big government intruding on your personal liberty, but then you demand that your government intrude on other people's personal liberty based upon your religious beliefs.

Everybody says they hate the idea of Sharia Law being imposed on Christians, Protestants, Jews, etc., and non-religious people in America. We're against it -- we say -- because we don't want some other religion to be able to impose its will on the rest of us. But then the Catholic Bishops and some of their water-carriers push legislation through our legislature based upon their religious views, and we're all okay with that?

Let's be honest with each other, too, and admit that this is exactly what's happening in North Dakota. The "admitting privileges" law has nothing to do with a woman patient's safety. Anybody with an ounce of integrity would have to admit that. The limits on medical abortions has nothing to do with safety. As Judge Corwin has made pretty clear, all this legislation is part of a transparent, poorly-executed effort to close down one Fargo-based clinic. Let's not pussy-foot around that. What we're talking about here, really, is a choreographed effort to close the Fargo clinic, and to make it look like the effort has to do with "patient safety."

Anybody with an ounce of integrity and intellectual honesty would have the character it takes to admit that.

Do you admit that, Jake? Are you honest enough to admit that? Or am I engaging in a debate with someone who's looking me in the eye (figuratively) with one hand on the Bible his other hand is clutching, and lying to me about the basic foundation of what we're really talking about?
 
August 02, 2013
Votes: +0

nimrodent said:

...
Judge Corwin followed the rule of law and the principle of stare decisis in making his decision. That is part and parcel of the fabric of our nation -- it is the American way. Jake, if you dislike his decision so intensely, you are free to try change the law by amending the U.S. Constitution to put limits on a woman's right to privacy.
 
August 02, 2013
Votes: +0

Jake said:

...
let's get race out of this. You must really hate being a white man. This is something in which not only I, a white man, but also friends of mine that are native american, black, hispanic. I'm sure you think I'm just a white republican that would never have a diverse group of friends. But that isn't true. Stop being racist and let's move on.

Again let's keep religion out of it. I read your blog and Sayanything...he's an atheist and yet is against abortion because he thinks it's a baby.

I absolutely believe that the bill was solely based to close down the clinic. So I won't argue that point.

My main question is when is it no longer a group of cells? Is it when a heart beat is heard? If so that's 6-8 weeks...max.

When is this really a baby? I think that is the answer I would need from you to move forward in this discussion.

Thanks for replying calmly and almost without being insulting.
 
August 02, 2013
Votes: +0

Jake said:

...
Nimrod, what if we put an amendment in the ND constitution. Would that be ok then?
 
August 02, 2013
Votes: +0

Marty said:

...
Jake, personally, I think brain activity is more relevant than a heartbeat.

But is that the only question you think needs to be answered in order to decide whether and when abortion should be legal? If so, then THAT would be the reason this discussion can't move forward. It won't be due to anyone choosing or not choosing to answer your unanswerable question.

 
August 02, 2013
Votes: +0

Jake said:

...
well a woman that is 2 months pregnant and get's killed the killer get's double homicide. So we should probably change that too. But I think if it's a baby or not is the full reason to debate. If it's a baby then is it ok to kill it. If it is, then when should it be the cutoff to abort it. If it has down syndrome should they be allowed to abort. The mother may not want to deal with that in life. Is that ok? This is a big conversation.
 
August 02, 2013
Votes: +0

Marty-again said:

...
Did it bother you, Jake, when those sextuplets died in Minnesota a few years ago? It bothered me. Personally I think the mother should have exercised multi-fetal reduction. But then again I can see how it shouldn't be someone else's decision to make besides the parents. Can you?
 
August 02, 2013
Votes: +0

Jake said:

...
again. No one is stating what I'm asking. When IS it a baby? Give me a hard answer.
 
August 05, 2013
Votes: +0

Marty said:

...
I answered you, Jake. Now, if your mission here is to try to convince us all to devolve to your binary worldview, you're wasting your time and energy here. If you're interested in moving beyond that for yourself, perhaps consider spending more of your energy truly thinking about what has been written here, rather than trying to devise your next futile/failed rebuttal.
 
August 05, 2013
Votes: +0

Chet said:

Jake
Jake sounds like the kind of binary-thinking fundamentalist that would make a woman carry an ectopic pregnancy to term (likely killing her). Also sounds like the kind of person who would force a rape victim to carry the product of the rape to term and then give the rapist visitation rights. I hope he never gets a chance to impose his Taliban-like views on my personal medical decisions.
 
August 05, 2013
Votes: +0

Jake said:

...
You guys didn't answer my question. WHEN is it considered a baby? An easy answer question for you. Is it 1st trimester? Second? Third? after it's born? Why can't you directly answer this question?
 
August 05, 2013
Votes: +0

Marty said:

...
I have answered yours, Jake. Feel free to comment again after you think you've developed the ability to understand my answer. Perhaps at that point you will also be prepared to answer the questions I asked you. What a nice discussion we might have at that point!

But I know it will probably take a while. That's okay - we understand. Don't get frustrated with yourself. Keep learning, keep reading, feed your mind. Get outside your comfort zone. Challenge your assumptions.

You'll get there. We're here to help.
 
August 05, 2013
Votes: +0

Jake said:

...
When does that brain activity take off to acceptable levels for you Marty?

Also way to bring Good Old Democrat Dickery into the conversation. I've been polite. I, until this message, have stayed away from calling names.

Is everyone on this site incapable of discussing without insulting? Do you think that is why regular ND citizens are turned off by the Democratic party?
 
August 05, 2013
Votes: +0

Marty said:

...
I'm not a Democrat, Jake. If I've struck a nerve, that's good, but don't blame anyone else but me for anything I've said here or for your discomfort with it.

You're asking an interesting question about brain activity, Jake. What do you think? But you do understand that wasn't exactly my answer to your question, right?
 
August 05, 2013
Votes: +0

Chet said:

Turned off.
I wonder if people like Jake ever think about the fact that the anti-choice crowd's language is at least as insulting and antagonistic as the pro-choice crowd's. (Or, I'd argue, more insulting and more antagonistic.) For example, it's a little bit insulting to be called a "baby killer" or "murderer." When the other side in a "debate" about choice wants to start by calling me names, it's not a debate; it's a waste of time for everyone involved.

Jake and his people's suggestion is that anybody who supports the pro-choice view is a murderer because they have stopped the possible development -- into a "baby" -- of cells from the genus "homo sapiens." They see it in black-and-white terms like that. Their religion (or blind adherence to right-wing dogma) makes them inflexible on the issue, and so we're wasting our time by engaging with them, trying to respond to their complex question fallacies.
 
August 05, 2013
Votes: -2

Marty said:

...
I agree to an extent, Chet. But for someone like Jake, as you've noted, I'm guessing there is only black and white, yes and no, good and evil, win and lose. Binary. (Perhaps I'm wrong, but I haven't seen evidence of that yet.) So the trouble is, once we stop talking to him, his binary mind likely would tell itself that it must have presented an irrefutable argument. I don't want to be effectivly dishonest to him by allowing him to have that misconception. He might not appreciate it; his defense mechanisms might kick in and he'll call me insulting; he might be unwilling to admit that, by being honest with him, we are being better friends to him than those who merely tell him what he wants to hear ... but that doesn't mean we shouldn't do it.

I also believe it is possible that Jake a 17-ish year old, maybe a high school junior or senior, who has been active in his church; perhaps spends his time traveling with his church (or Catholic school) group to Washington DC to attend pro-life marches. Poor kid has not been exposed to much aside from his indoctrination. I don't mind continuing the dialogue. Might take a few years, but perhaps his eyes will open someday and realize there is more to this world than he had been taught.
 
August 05, 2013
Votes: -1

nimrodent said:

...
Jake, when is a human embryo developing in a woman's uterus a "person" with constitutional rights that outweigh the constitutional rights of the woman with the embryo in her uterus?
 
August 05, 2013
Votes: +0

Chet said:

Sorry, Marty...
We'll just have to agree to disagree on this.

After a brief, useless exchange between a classmate and a college professor back in my undergrad days, I went in to talk to the professor in his office and ask him why he didn't let the classmate continue to try to argue his (nonsensical) point. The professor said to me, "Chad. It's my job to teach people who want to learn. They don't have to be brilliant or even smart to want to learn. But it is not my job to teach people who don't want to learn." His point was, I think, that he has a limited amount of time to teach his class and didn't want to waste his time (or ours) on students who had (nonsensical) agendas and who weren't really there to learn or even to have a dialogue. They were there to parrot the dogma that made up there personal agendas.

I agree that nobody should ever be written off as disinterested in having a meaningful dialogue (or disinterested in learning) the first time they pose an absurd question or point. I don't think everyone who poses a single false dichotomy or complex question fallacy or other lame right-wing logical or rhetorical tool should be written off. Maybe you don't write them off the second time, either. Maybe not even the third. But you really have to draw the line somewhere.

Jake (or whatever his real name is) has been trolling here for how long? A year or two? I honestly can't remember a time when he's offered up a nugget of evidence that shows he's here to engage in a meaningful dialogue. Maybe he has at some point, but the right-wing talking-points and other nonsense have drowned out any memory I have of that. He's here to try to draw stupid people into his lame logical fallacies. At some point I have to feel insulted by that.

I've been crossing the desert for a long time. My feet hurt and my throat is dry. I have only so many arrows in my quill. I don't mind wasting one or two now and then to test whether the target I think I see is real or a mirage. But once I've figured out it's a mirage, I'm not gonna empty my quill shooting at it.
 
August 05, 2013
Votes: +0

Jake said:

...
Marty, you refuse to answer the question. Yet spew worthless assumptions about me. BTW, I haven't called any of you baby killers or murderers.

Nimrodent that's a great question. If it's killed or be killed perhaps? Who's to say a baby's life is more important that the woman's life? And I agree with that. If it were a black and white choice of the woman or the unborn child living...then i would say the woman. The fact of the matter is that is also less than 1% of pregnancies.

What my argument is, if it is a murder to voluntarily kill a baby in the mother's womb, how can it not be murder if the mother decides to do it? By charging a person with murder for killing a 2 month, in the womb, baby; are you not classifying it as a living being? If an unborn child is being protected by law when an outside force kills it, how is it not protected by law when the mother decides to kill it?
 
August 05, 2013
Votes: -1

Marty said:

...
Jake, sweetheart, I did answer your question.

So why is it that you continue to insist that I must answer your question, which I have already answered, but you refuse to respond to mine? Should I not have taken that as an insult? I'm sorry, but I did.

In response to your insult, I spewed only my most favorable assumptions about you. (Would you like to hear my less favorable assumptions? Let me know.) Evidently these stuck pretty close to home, or else you wouldn't have taken such offense to them.

But I understand, you don't want me to tell you any more about yourself, right now. That's fine; I can take Chet's advice on this and let you go. That doesn't mean I'm abandoning you, Jake. I'll just let you try to figure things out on your own for a while. It's probably for the best.
 
August 05, 2013
Votes: +0

jake said:

...
What did you answer? You said Brain activity more than heartbeat correct? If I'm lost in your answer, please answer it again. But answer my question about the laws.

About me? Yes I am a Christian...but a lot of pro-lifers are not...which is why I'm not arguing religion. I am conservative...there is no doubt on that. Nimrodent brought up a good point...I answered it calmly and with another question about how the law should be interpreted and if there wasn't already a precedence set by charging a criminal with murder of an unborn child but not the mother terminating the unborn child.

I really hope you don't abandon...I really hope you answer directly. I think I'm answering questions straight forward...if I'm not ask them directly and I will answer them. I'm not afraid of this conversation.
 
August 05, 2013
Votes: -1

nimrodent said:

...
Classic troll bs. probably on payroll. over and out.
 
August 05, 2013
Votes: -1

jake said:

...
Chet, before you check out can you answer my legal calamity? I honestly don't understand how one can stand while the other doesn't.
 
August 05, 2013
Votes: -1

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