Abortion could be considered murder under fetal personhood proposal in North Dakota

North Dakota lawmakers are weighing whether to allow women who obtain abortions to be charged with murder.

House Bill 1373, referred to as a “personhood bill,” would define a human being to include an unborn child in state laws relating to murder, assault and wrongful death lawsuits. The bill would also establish that an unborn child exists at the moment of fertilization.

Rep. Lori VanWinkle, R-Minot, is the bill’s lead sponsor. She said the Legislature’s prior attempts to restrict abortion did not go far enough.

“This is a commonsense bill that will close a loophole that has allowed the murder of innocent lives to continue in this state,” she told the House Human Services Committee during a Wednesday hearing on the bill.

No other states have passed a law like House Bill 1373 before, Ginna Cross, founder of an anti-abortion organization based in Wisconsin, said during the hearing.

Abortion rights supporters said the bill would hand down severe punishments to what should be considered a personal choice.

Even some members of the public who self-identified as anti-abortion said the bill could unfairly punish women who are coerced into seeking them, or who receive medical care for life-threatening pregnancy complications.

Bradley Pierce, president of the Foundation to Abolish Abortion and a resident of Texas, said there’s no need to worry about malicious prosecution if the bill passes because people would stop getting abortions altogether.

“It’s never gonna happen in the first place,” he said.

The bill contains exceptions for the unintentional death of a fetus resulting from:

• Ordinary medical procedures performed during diagnostic testing of a pregnancy
• Procedures to save the life of a mother, so long as those procedures are done alongside “reasonable steps to save the life of the unborn child”
• Spontaneous miscarriage

The proposal does not elaborate on what terms like “reasonable steps” or “spontaneous miscarriage” mean.

Some medical providers specializing in vitro fertilization and other fertility services spoke against the bill. They said If the bill is passed as currently written, it would be impossible for those services to continue in North Dakota. The exemptions are not specific enough to give providers confidence that they wouldn’t face prosecution or lawsuits, they added.

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Supporters of House Bill 1373 maintained the bill would not criminalize necessary medical care, nor would it significantly affect IVF clinics.

Chris Dodson, general counsel and co-director of the North Dakota Catholic Conference, also spoke against the bill. 

The North Dakota Catholic Conference opposes abortion, but does not believe in punishing women who seek them, he said.

He also called the proposal “obviously unconstitutional” and “ultimately pointless.” 

The law would not survive in the courts, but forcing the state to defend it against litigation could waste hundreds of thousands of dollars in taxpayer money, he said.

North Dakota’s two previous laws restricting abortion access were challenged in court. The most recent of the two, which was adopted in 2023, was declared unconstitutional and voided by a district court judge last year. The state appealed the decision, which is now being reviewed by the North Dakota Supreme Court.

North Dakotans rejected a similar personhood proposal in 2014. A ballot measure to add language establishing fetal personhood in the state constitution was voted down by roughly 64% of voters.

A separate proposal heard by the House Human Services Committee on Wednesday, House Bill 1488, would legalize abortions for any reason through week 15 in pregnancy.

The bill is proposed by Rep. Eric Murphy, a Grand Forks Republican.

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He said the abortion bans in North Dakota and across the country have prevented doctors from taking care of their patients.

He referenced reports by ProPublica that found women in Texas have died because doctors were too afraid to treat their miscarriages under their state’s abortion law. 

“This, my colleagues, is not pro-life,” Murphy said.

Murphy proposes allowing elective abortions up to week 15, and for later-term abortions to be decided by committees of doctors.

Abortions between weeks 16 and 26 would only be legal if done for a medical purpose, including a serious health risk to the mother, according to the bill.

In order to perform abortions at this stage of pregnancy, health care professionals would need approval from a three-member committee of doctors appointed by their hospital.

Those committees would also approve any abortions sought after week 26, though only if the abortion is deemed medically required.

Doctors wouldn’t need approval from a committee to provide abortions in emergency situations, the bill states.

Murphy said obstetricians have told him they were reluctant to perform abortions under North Dakota’s previous health care ban even when their patients faced severe pregnancy complications, because they feared they would be charged with a crime.

“These laws have meaning and they have consequences,” he said. “And when physicians aren’t willing to cross a line, people die.”

The bill is opposed by several anti-abortion groups, including the North Dakota Catholic Conference and North Dakota Family Alliance Legislative Action.

Some medical professionals who support abortion access also spoke against the proposal.

Ana Tobiasz, an obstetrician/gynecologist, said doctors still would be reluctant to perform medically necessary abortions under the bill.

“While I appreciate that the bill sponsor’s intent was to attempt to moderate North Dakota’s dangerous abortion laws, including SB 2150 passed last session, I have several concerns about this legislation,” she said. “HB 1488 does not resolve the vagueness of the serious health risk exception. It contains the same definition that has been successfully challenged in the North Dakota courts.”

The committee did not take action on either bill on Wednesday.

Last week, a legislative committee heard testimony on two bills from Rep. Karla Rose Hanson, D-Fargo, that seek to protect contraceptives and IVF. No action has been taken on those bills, either.