BISMARCK – The North Dakota Supreme Court on Tuesday reversed a Fargo-based district judge’s ruling that had blocked a 2011 state law limiting drug-induced abortions, letting the law stand despite three of the court’s five justices saying it violates the U.S. Constitution.

Attorneys for the Red River Women’s Clinic in Fargo, North Dakota’s only abortion clinic, had argued that the law was effectively a ban on medication abortions, an alternative to surgical abortion that is chosen by about 20 percent of the clinic’s patients.

They now have 14 days to petition the Supreme Court for a rehearing before the law takes effect. David Brown, an attorney with the New York-based Center for Reproductive Rights, which represented the clinic, said Tuesday afternoon he was still digesting the 103-page opinion and couldn’t say yet whether a petition will be filed.

“It’s a disappointment for our clients. It’s a disappointment for the women of North Dakota,” he said of the opinion.

Attorney General Wayne Stenehjem, whose office defended the law passed by the Republican-majority Legislature, said he also was still digesting the opinion.

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“I think the important thing is they did not succeed in establishing a state constitutional right to abortion, which was their goal,” Stenehjem said.

After a three-day trial in April 2013, Cass County District Court Judge Wickham Corwin agreed with the clinic, finding that the law was essentially a ban on all medication abortions that violated the state constitution and was an undue burden on a woman’s right to an abortion under the federal constitution.

Corwin permanently blocked the law, after having granted a temporary injunction stopping it from taking effect on Aug. 1, 2011.

The state appealed Corwin’s ruling to the Supreme Court.

Justices were split on whether the law was unconstitutional under both the state and federal constitutions.

The Supreme Court was evenly split on whether the law violated the state constitution, with Justices Mary Muehlen Maring and Carol Ronning Kapsner finding it did and Chief Justice Gerald VandeWalle and Justice Dale Sandstrom finding it didn’t. Justice Daniel Crothers concluded the state constitutional issue didn’t need to be decided.

Maring, Kapsner and Crothers found the law violated the U.S. Constitution, while VandeWalle found that it wasn’t unconstitutional at the federal level. Sandstrom opined that the federal question didn’t belong before the state Supreme Court.

Tuesday’s opinion hinged on the North Dakota Constitution’s requirement that at least four members of the Supreme Court be in agreement to declare a statute unconstitutional.

VandeWalle, Sandstrom and Crothers found that while three justices found the law to be unconstitutional under the U.S. Constitution, that wasn’t a sufficient majority to declare the law unconstitutional. Kapsner and Maring – who heard the appeal before retiring Dec. 31 – disagreed, finding there was a sufficient majority.

“The effect of the separate opinions in this case is that (the law) is not declared unconstitutional by a sufficient majority and that the district court judgment permanently enjoining the State from enforcing (the law) is reversed,” the opinion stated.

Brown said that because it takes four justices to declare a statute constitutional, “the vote of two justices in this particular case beats the vote of three, which is unique to North Dakota as far as I know.”

“We think the three justices who said the law unconstitutionally played politics with women’s health care and women’s lives is the right decision,” he said.

The clinic began offering medication abortions in 2007 using two prescription drugs, mifepristone and misoprostol, according to testimony from the trial. Medication abortions are provided at up to nine weeks of pregnancy.

The clinic contends that while House Bill 1297 might not be an outright ban on medication abortion, it would act as a de facto ban by requiring the clinic to use an outdated protocol on the U.S Food and Drug Administration’s approved label for mifepristone, which would prevent women whose pregnancy is past 49 days from having a medication abortion.

Women eligible for the procedure also would have to return to the clinic to take the second drug instead of taking it at home, which would put them in harm’s way because they begin to experience bleeding, cramping and other symptoms soon after ingesting the drug, attorney Autumn Katz argued at trial. She also said the law would increase the cost of medication abortions by 40 percent for the clinic’s patients, about 40 percent of whom live at or below the poverty line.

Tammi Kromenaker, the director of the Fargo clinic, couldn’t be reached for comment on Tuesday.

The state argued that the law may limit but doesn’t ban medication abortions or rule out surgical abortion, and that the Legislature “set a baseline” by using the FDA-approved protocol.

If the law goes into effect, North Dakota would be the third state in the nation to outlaw medication abortions by an “off-label” use of a prescription drug, according to the Guttmacher Institute. The other states are Texas and Ohio. A similar law is also set to go into effect Saturday in Oklahoma, where a ban on all drug-induced abortions is still pending a court challenge, according to an Oct. 1 Guttmacher report.

The passage of the 2011 law was the first of several new restrictions to abortion approved by the North Dakota Legislature. State lawmakers passed a variety of new prohibitions in 2013, including a ban on abortions after a fetal heartbeat is detected.

A federal judge blocked enforcement of the fetal heartbeat law, saying in an April ruling that the law would violate the U.S. Constitution by essentially banning abortions after six weeks. The state has appealed the ruling.

Because of a ballot measure proposed by the Legislature, voters in North Dakota will also decide on Tuesday whether to add an amendment to the state constitution which states: “The inalienable right to life of every human being at any stage of development must be recognized and protected.”

The North Dakota Catholic Conference applauded Tuesday’s ruling in a statement from Christopher Dodson, executive director of the conference, which represents the state’s Catholic bishops.

“This is a good day for the protection of women’s health and for affirming the right of elected officials to establish regulations to protect the health and safety of women seeking abortions,” Dodson said in the statement.

Dodson said the split decision shows the need for Measure 1, the “right to life” amendment on the ballot Tuesday.

“The people of North Dakota have a right to decide this question before the abortion lobby comes back into the state to try again to strike down laws that even the U.S. Supreme Court has said we can pass,” he said.