Facial Vagueness, Natural Rights, and the Four‑Vote Rule: Commentary on Access Independent Health Services, Inc. v. Wrigley, 2025 ND 199

I. Introduction

The North Dakota Supreme Court’s decision in Access Independent Health Services, Inc., d/b/a Red River Women’s Clinic v. Wrigley, 2025 ND 199, marks a critical juncture in the state’s abortion jurisprudence and in its doctrine on “void for vagueness” and natural rights. The Court confronted a direct facial challenge to North Dakota’s post‑Dobbs criminal abortion statute, N.D.C.C. ch. 12.1‑19.1, brought by the Red River Women’s Clinic and several physicians.

The case sits at the intersection of three major themes:

• North Dakota’s constitutional “natural rights” clause (art. I, § 1) and its application to abortion;
• Due process “void for vagueness” doctrine (art. I, § 12) outside the First Amendment context; and
• The state constitutional rule that no statute is invalidated unless at least four of the five justices so vote (art. VI, § 4).

The Court was evenly divided on the merits. Justice Crothers, joined by Justice McEvers and District Judge Narum (sitting by designation), would have held the statute facially void for vagueness and invalid in its entirety. Justice Tufte, joined by Chief Justice Jensen, would have upheld the statute, rejected the vagueness challenge, and adopted a narrow, historically grounded view of abortion‑related natural rights.

Because the North Dakota Constitution requires at least four justices to declare a statute unconstitutional, the district court’s judgment striking down chapter 12.1‑19.1 was reversed, and the statute stands. The per curiam disposition is formally controlling; the competing opinions by Crothers and Tufte are highly developed but non‑precedential, leaving key doctrinal questions unsettled.

II. Background and Procedural History

A. Parties and Statutory Framework

The plaintiffs are:

• Access Independent Health Services, Inc., doing business as Red River Women’s Clinic (the state’s primary abortion provider), and
• Several physicians (Drs. Eggleston, Tobiasz, Hofland, Lessard) suing on their own behalf and on behalf of patients.

They challenged N.D.C.C. ch. 12.1‑19.1, enacted after this Court’s earlier decision in Wrigley v. Romanick, 2023 ND 50 (“Wrigley I”), which had preliminarily enjoined enforcement of a prior “trigger ban.” The new chapter:

• Defines “abortion” broadly (N.D.C.C. § 12.1‑19.1‑01(1));
• Makes it a class C felony for anyone other than the pregnant woman to “perform an abortion” (N.D.C.C. § 12.1‑19.1‑02); and
• Contains narrow exceptions, including:
  • A “health‑risk” exception: abortions “deemed necessary based on reasonable medical judgment” to “prevent the death or a serious health risk to the pregnant female” (N.D.C.C. § 12.1‑19.1‑03(1), with “serious health risk” defined in § 12.1‑19.1‑01(5)); and
  • A rape/incest exception up to six weeks’ probable gestational age (N.D.C.C. § 12.1‑19.1‑03(2)).

Violation is punishable as a class C felony (up to five years’ imprisonment and a $10,000 fine), with collateral consequences for voting, holding office, and medical licensure.

B. Claims in the District Court

The plaintiffs advanced two principal constitutional claims:

1. Void‑for‑vagueness (art. I, § 12 – due process). They argued chapter 12.1‑19.1 is unconstitutionally vague because:
   • It fails to give physicians fair notice of when an abortion is legally permitted to preserve a pregnant patient’s life or health;
   • It employs undefined or opaque terms such as “serious health risk,” “substantial physical impairment,” “major bodily function,” and “reasonable medical judgment”; and
   • Its felony penalties and professional consequences chill physicians from providing constitutionally protected, life‑ and health‑preserving care.
2. Violation of natural rights (art. I, § 1). Plaintiffs asserted that the statute infringes pregnant women’s “inalienable” rights to:
   • “Enjoying and defending life and liberty” and
   • “Pursuing and obtaining safety and happiness,”
   by prohibiting abortions necessary for life or health and, more broadly, abortions in situations such as lethal fetal anomalies and serious mental health conditions.

The State moved for summary judgment. The plaintiffs opposed and sought judgment in their favor. The district court granted summary judgment to the plaintiffs, holding chapter 12.1‑19.1:

• “Confusing and vague” on its face, with a “profound chilling effect” on physicians;
• Unconstitutionally vague under art. I, § 12; and
• Infringing fundamental rights under art. I, § 1 (including for crime victims), and thus unconstitutional.

The State appealed and sought a stay. In Access Independent Health Services, Inc. v. Wrigley, 2025 ND 26 (“Wrigley II”), the Supreme Court (again divided) denied the stay, signaling skepticism about the statute’s validity. The case then proceeded to a decision on the merits.

C. The Four‑Vote Rule and Per Curiam Disposition

Article VI, § 4 of the North Dakota Constitution provides:

“[T]he supreme court shall not declare a legislative enactment unconstitutional unless at least four of the members of the court so decide.”

The Court’s dispositive per curiam (¶¶ 1–3) explains:

• Justice Crothers (joined by McEvers and Narum) concluded chapter 12.1‑19.1 is unconstitutionally vague under art. I, § 12, and non‑severable.
• Justice Tufte (joined by Chief Justice Jensen) concluded the chapter is not unconstitutional under art. I, §§ 1 or 12.
• Because only three justices would find the statute unconstitutional, it is not invalidated; the district court’s judgment is reversed under the four‑vote rule, as in MKB Management Corp. v. Burdick, 2014 ND 197, 855 N.W.2d 31.

Thus, the outcome is:

• The injunction and declaration of unconstitutionality are reversed.
• Chapter 12.1‑19.1 remains in force.
• The extensive opinions provide guidance but do not establish binding precedent on key doctrinal points.

III. Summary of the Competing Opinions

A. Justice Crothers’s Opinion (for Three Justices)

Justice Crothers, writing at length but formally in the mode of “we would,” would:

1. Accept a facial vagueness challenge outside the First Amendment where a criminal statute burdens a non‑speech fundamental right—in this case, the right to life‑ and health‑preserving abortion recognized in Wrigley I.
2. Hold the health‑risk exception unconstitutionally vague. Key findings include:
   • The statute uses an objective “reasonable medical judgment” standard, not a subjective good‑faith standard, and thus can criminalize good‑faith medical decisions.
   • Essential terms (“serious health risk,” “substantial physical impairment,” “major bodily function”) are undefined, medically unfamiliar, and inconsistently understood even by the State’s own experts, leading to arbitrary enforcement and lack of fair notice.
   • The severe felony penalties heighten the required clarity, particularly where constitutionally protected medical care is at stake.
   • The law creates an unresolved tension with North Dakota’s subjective self‑defense/defense‑of‑others framework governing when it is permissible to end one life to protect another.
3. Find the vague exception non‑severable.
   • Removing the vague health‑risk exception would leave a flat felony prohibition on all abortions, including those necessary to save a woman’s life—contrary to the fundamental right recognized in Wrigley I.
   • Conversely, striking the felony prohibition would leave the chapter inoperative.
   • Following State v. Fischer, 349 N.W.2d 16 (N.D. 1984), where an unconstitutional defense could not be severed from the underlying offense, Crothers concludes chapter 12.1‑19.1 would have to be invalid “in its entirety.”
4. Decline to reach other constitutional issues. Having found the chapter wholly invalid on vagueness and severability grounds, Crothers would not reach:
   • The art. I, § 1 natural‑rights claim (broader asserted right to abortion); or
   • The alleged vagueness of the rape/incest exception.

Because this view commanded only three votes, these conclusions are not controlling precedent but provide a powerful articulation of a more rights‑protective vagueness doctrine.

B. Justice Tufte’s Opinion (for Two Justices)

Justice Tufte writes at comparable length in opposition to Crothers on two central points:

1. Scope of the natural right and level of scrutiny.
   • He undertakes a detailed “original public meaning” analysis of art. I, § 1, using:
     • 1880s dictionaries,
     • Thomas Cooley’s treatise on state constitutions,
     • territorial and early state abortion statutes and prosecutions, and
     • analogies to the jury‑trial right (art. I, § 13).
   • He concludes that in 1889 the public understood:
     • a natural right to defend one’s life and avoid serious bodily harm, including by obtaining abortion when necessary, but
     • no broader right to abortion as such.
   • Section 1 is read to preserve the existing 1889 baseline (abortion criminalized except where “necessary to preserve [the] life” of the woman), not to grant an open‑ended right to abortion.
   • The 1984 change from “All men” to “All individuals” is treated as a non‑substantive modernization, not a gender‑equality amendment creating new abortion rights.
2. Vagueness doctrine and facial challenges.
   • Outside the First Amendment, he insists on the traditional rule: a facial vagueness challenge requires the challenger to show the statute is vague in all its applications and at least vague as applied to the challenger’s own (actual, not hypothetical) conduct.
   • He rejects “chilling effect” and overbreadth‑type reasoning outside speech and association, warning that Crothers’s approach would turn almost any criminal statute with imprecise terms into a candidate for facial invalidation, especially where any constitutional right (self‑defense, firearms, parental rights, etc.) is implicated.
   • He argues the plaintiffs’ case is purely pre‑enforcement and hypothetical; no plaintiff has been prosecuted, and thus they cannot show as‑applied vagueness.

On the merits of vagueness, Tufte would find:

• The statute’s key terms (“serious health risk,” “substantial,” “major bodily function,” “reasonable medical judgment”) align with long‑accepted legal usages in prior North Dakota cases rejecting vagueness challenges (Montplaisir, Motsko, Tranby, Simons).
• Physician disagreement or difficulty in “close cases” does not make a statute unconstitutionally vague; some discretion and line‑drawing are inherent in law enforcement.
• The health‑risk exception is consistent with the narrow Section 1 right to avoid death or severe bodily harm, and the exclusion of mental‑health‑only abortions is a policy choice within the legislature’s police power.
• The rape/incest exception’s use of “reasonable medical judgment” is workable because physicians routinely rely on patient self‑report.

He would reverse the district court and uphold the statute’s constitutionality in full, “without prejudice to any future as‑applied challenges.”

IV. Analysis of Key Legal Issues

A. Precedents and Doctrinal Foundations

1. Facial vs. As‑Applied Challenges

Both opinions engage heavily with the distinction between:

• Facial challenges – claims that a statute is unconstitutional in its very enactment and must be treated “as if it were never enacted” (citing Sorum v. State, 2020 ND 175, 947 N.W.2d 382; Northwest Landowners Ass’n v. State, 2022 ND 150, 978 N.W.2d 679; SCS Carbon Transportation v. Malloy, 2024 ND 109, 7 N.W.3d 268).
• As‑applied challenges – claims that a statute is unconstitutional as applied to the challenger’s specific facts.

Historically, North Dakota cases in the vagueness context (e.g., Tibor, Holbach, Ness, D.D.) have:

• Refused to entertain facial vagueness challenges where the statute clearly applied to the challenger’s own conduct; and
• Described such limitations as matters of “standing,” often prudential rather than jurisdictional.

Crothers treats these as prudential doctrines that can yield when a vague law chills fundamental, non‑speech rights. Tufte treats them as settled constraints that bar the plaintiffs’ pre‑enforcement, hypothetical attack.

2. Void‑for‑Vagueness Doctrine

Both sides rely on the conventional two‑pronged vagueness test:

• Does the law provide “adequate and fair warning” in terms a reasonable person can understand?
• Does it establish “minimum guidelines” to prevent arbitrary and discriminatory enforcement by police, prosecutors, and juries?

North Dakota precedents cited include:

• State v. Moses, 2022 ND 208, 982 N.W.2d 321;
• Interest of D.D., 2018 ND 201, 916 N.W.2d 765;
• City of Fargo v. Roehrich, 2021 ND 145, 963 N.W.2d 248;
• State v. Holbach, 2009 ND 37, 763 N.W.2d 761;
• Simons v. Dep’t of Human Services, 2011 ND 190, 803 N.W.2d 587;
• City of Belfield v. Kilkenny, 2007 ND 44, 729 N.W.2d 120;
• Best Products Co. v. Spaeth, 461 N.W.2d 91 (N.D. 1990);
• State v. Montplaisir, 2015 ND 237, 869 N.W.2d 435.

On the federal side, both opinions wrestle with:

• Village of Hoffman Estates v. Flipside, 455 U.S. 489 (1982);
• United States v. Salerno, 481 U.S. 739 (1987);
• City of Chicago v. Morales, 527 U.S. 41 (1999);
• Johnson v. United States, 576 U.S. 591 (2015);
• Grayned v. City of Rockford, 408 U.S. 104 (1972);
• Colautti v. Franklin, 439 U.S. 379 (1979) (abortion regulation struck as vague pre‑Dobbs);
• Kolender v. Lawson, 461 U.S. 352 (1983).

Crothers reads Johnson and Morales as undermining the rigid “no set of circumstances”/“vague in all its applications” standard, and as supporting facial vagueness rulings in criminal contexts beyond speech where fundamental rights are chilled.

Tufte, by contrast, emphasizes earlier language from Hoffman Estates and Salerno, and underscores that North Dakota’s vagueness decisions have consistently refused facial invalidation without showing vagueness in the challenger’s own case. He views Colautti’s abortion‑specific vagueness analysis as part of the now‑overruled Roe/Casey line and thus not a sound model.

3. Severability and Fischer

Both opinions accept the general severability framework under N.D.C.C. § 1‑02‑20 and cases such as:

• Northwest Landowners Ass’n v. State, 2022 ND 150;
• North Dakota Legislative Assembly v. Burgum, 2018 ND 189;
• Arneson v. Olson, 270 N.W.2d 125 (N.D. 1978);
• Montana‑Dakota Utilities Co. v. Johanneson, 153 N.W.2d 414 (N.D. 1967);
• First Bank of Buffalo v. Conrad, 350 N.W.2d 580 (N.D. 1984).

Crothers leans heavily on State v. Fischer, 349 N.W.2d 16 (N.D. 1984), where the Court invalidated an entire bad‑check statute because an unconstitutional defense provision (“payment within ten days” as a defense) was so intertwined with the offense that the legislature likely would not have enacted the offense without the tempering defense.

He analogizes the health‑risk exception to Fischer’s defense: if the exception is invalid, the remaining felony ban—devoid of any life/health exception—would be harsher than what the legislature contemplated and would violate the recognized fundamental right to life‑ and health‑preserving abortion. Thus, he would strike the whole chapter.

Tufte does not squarely dispute the Fischer analogy because, in his view, the exception is not vague and the statute is entirely valid. Thus, severability analysis is never triggered on his approach.

B. The Core Dispute on Vagueness

1. Objective vs. Subjective “Reasonable Medical Judgment”

A central element of the statute is its definition:

“‘Reasonable medical judgment’ means a medical judgment that would be made by a reasonably prudent physician who is knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.” (N.D.C.C. § 12.1‑19.1‑01(4), emphasis added)

Crothers treats this as an objective standard: it asks what a hypothetical reasonably prudent physician would do, regardless of what the defendant physician in fact believed or knew. He contrasts this with a subjective standard, under which the factfinder assesses the situation from the defendant’s point of view, including the defendant’s honest good‑faith belief.

He then draws a parallel to North Dakota’s self‑defense statutes (ch. 12.1‑05) and cases like:

• State v. Hazlett, 113 N.W. 374 (N.D. 1907);
• State v. Leidholm, 334 N.W.2d 811 (N.D. 1983);
• City of Jamestown v. Kastet, 2022 ND 40, 970 N.W.2d 187.

In self‑defense and defense‑of‑others, North Dakota has long embraced a subjective standard: a defendant who “reasonably but incorrectly” believes deadly force is necessary may be excused. This is seen as more just, avoiding punishment of those who act in good‑faith under emergency conditions, even if later second‑guessed.

By making “reasonable medical judgment” purely objective and not keyed to the physician’s actual belief in a crisis, chapter 12.1‑19.1:

• Potentially criminalizes good‑faith emergency decisions later deemed “unreasonable” by juries or experts; and
• Creates apparent conflict with the general self‑defense justification framework when an abortion is undertaken to protect the life or health of the mother.

Tufte acknowledges the objective nature of the definition but sees no constitutional problem; objective reasonableness standards are ubiquitous in criminal and civil law (e.g., negligence, recklessness). He emphasizes that the question under vagueness is not whether the statute perfectly tracks the self‑defense code, but whether it gives adequate notice and enforces non‑arbitrarily.

2. Ambiguity of Key Medical‑Legal Terms

A distinctive feature of Crothers’s analysis is his exhaustive reliance on the State’s own expert witnesses. Under the summary‑judgment standard, he takes the facts in the light most favorable to the State; yet the experts’ depositions demonstrate:

• Confusion over whether “reasonable medical judgment” is subjective or objective;
• Inability or unwillingness to define:
  • “Serious health risk” – is it a probability, a continuum, a threshold?
  • “Substantial physical impairment” – how much impairment qualifies? No one had seen the phrase in medical literature.
  • “Major bodily function” – experts disagreed whether mental health or cognition counts.
• Disagreement over whether mental‑health‑related risks (e.g., suicidality) could ever justify abortion under the statute.

These inconsistencies, in Crothers’s view, demonstrate that:

• The statute does not convey a clear standard even to highly trained physicians;
• The line between permissible and criminal care in emergency obstetric situations is hazy; and
• The undefined terms delegate too much discretion to law enforcement and prosecutors, inviting ad hoc, subjective enforcement and chilling physicians from providing care that may be constitutionally protected.

He contrasts this with other North Dakota statutes where similar or even more technical terms have been defined by statute (e.g., “serious bodily injury,” “substantial bodily injury,” mental health definitions, workers’ compensation impairment schedules).

Tufte responds that:

• No statute can anticipate every factual permutation; the presence of “close cases” or expert disagreement does not render language unconstitutionally vague.
• Criminal statutes have been upheld with terms like “substantial risk,” “gross deviation,” and “substantial bodily injury,” and these terms have workable legal meanings even if not precise in every context.
• Physician testimony about difficulty in drawing lines, especially under adversarial questioning using hypotheticals, does not prove the statute lacks minimum guidelines for fair enforcement.

3. Severity of Penalties and Chilling Effect

Both sides agree that severity of penalties matters. Crothers emphasizes:

• Felony classification (class C);
• Potential imprisonment, fines, and loss of voting and office‑holding rights;
• Professional licensure consequences under N.D.C.C. § 43‑17‑31 and § 12.1‑33‑02.1; and
• Reputational “infamy.”

He argues these harsh consequences, coupled with ambiguous substantive standards, create a powerful incentive for physicians to steer well clear of the line—i.e., to refrain from providing abortions even when medically indicated to prevent serious harm—thereby chilling constitutionally protected conduct (life‑ and health‑preserving care).

Tufte does not dispute that penalties are serious but insists vagueness doctrine should not be transformed into a vehicle for second‑guessing legislative line‑drawing on the basis of policy concerns. He is particularly wary of importing the First Amendment “chilling effect” concept into other rights domains.

C. Natural Rights Under Art. I, § 1

1. Competing Conceptions of the Right

The plaintiffs variously framed the right as:

• A right to obtain life‑ and health‑preserving abortions;
• More broadly, a right to bodily autonomy and self‑determination that “necessarily includes” abortion.

The State framed the claim as an asserted “right to abortion,” including on‑demand, mental‑health‑based, and “life‑limiting” fetal anomaly abortions.

Crothers’s opinion does not undertake a full original‑meaning analysis of art. I, § 1 in this case; he relies on Wrigley I’s recognition that “a pregnant woman has a fundamental right to receive an abortion to preserve her life or health” and treats that narrow right as a given. His art. I, § 1 analysis is largely avoided because he would resolve the case on vagueness grounds.

Tufte, by contrast, squarely addresses the scope of the natural rights clause, deploying:

• Textual analysis of “enjoying and defending life and liberty” and “pursuing and obtaining safety and happiness”; and
• Contextual analysis of:
  • Territorial abortion laws in 1887 and their recodification after statehood;
  • Early prosecutions for abortion‑related offenses (Reilly, Moeller, Belyea, Longstreth);
  • Medical treatises and public commentary of the era; and
  • Other states’ pre‑1889 natural‑rights jurisprudence.

He concludes that the people who adopted the 1889 constitution:

• Knew abortion was widely criminalized, with exceptions only for procedures “necessary to preserve [the] life” of the pregnant woman;
• Did not understand the natural‑rights guarantee to invalidate those statutes;
• Understood art. I, § 1 as recognizing pre‑existing natural rights, not creating new ones; and thus
• Fixed those rights at their then‑existing content, much as art. I, § 13 preserves the right to jury trial “as it existed” at common law at the time.

From this, Tufte infers:

• Art. I, § 1 does secure a right to obtain medical care, including abortion, when “reasonably necessary” to prevent death or serious bodily injury; but
• It does not secure:
  • A general right to abortion;
  • Abortions based solely on mental‑health concerns or self‑harm risks;
  • Abortions to avoid the emotional distress of lethal or severe fetal anomalies in the absence of maternal health jeopardy.

This narrow reading of Section 1 significantly limits the reach of strict scrutiny in abortion cases and frames chapter 12.1‑19.1 as largely outside the constitution’s protective zone, except where it might be misapplied to deny abortions necessary to prevent death or serious physical harm.

2. Other State Natural‑Rights Cases

Both opinions recognize that many states have similar natural‑rights or “inherent rights” clauses. Tufte discusses at some length:

• Members of Med. Licensing Board v. Planned Parenthood, 211 N.E.3d 957 (Ind. 2023);
• Oklahoma Call for Reproductive Justice v. Drummond, 2023 OK 24, 526 P.3d 1123;
• Planned Parenthood Great Northwest v. State, 522 P.3d 1132 (Idaho 2023);
• Right to Choose v. Byrne, 450 A.2d 925 (N.J. 1982);
• Hodes & Nauser v. Schmidt, 440 P.3d 461 (Kan. 2019);
• Allegheny Reproductive Health v. Pennsylvania Dep’t of Human Services, 309 A.3d 808 (Pa. 2024) (plural and concurring/dissenting opinions).

He notes that Indiana, Oklahoma, and Idaho have adopted narrow life‑ and health‑preserving rights similar to his approach, while Kansas and New Jersey have used their natural‑rights clauses (or related privacy provisions) to support much broader abortion rights. He emphasizes that post‑1889 decisions from other states are not authoritative for North Dakota’s 1889 meaning, though they may be persuasive.

Crothers does not engage this comparative natural‑rights landscape in detail in this case, but his prior opinions and Wrigley I suggest a more expansive view of Section 1’s protection of reproductive autonomy than Tufte would accept.

D. The Four‑Vote Rule and Its Practical Effect

The per curiam’s reliance on art. VI, § 4 is straightforward but critical:

“[T]he supreme court shall not declare a legislative enactment unconstitutional unless at least four of the members of the court so decide.”

In both MKB Management Corp. v. Burdick and now Access v. Wrigley, the Court divided on the merits of abortion regulations. In each, fewer than four justices would strike the law, so the law remains in effect.

Functionally, this supermajority requirement:

• Creates a strong presumption of statutory validity;
• Makes constitutional change via litigation more difficult than in many other states; and
• Gives the legislature stability unless and until a near‑consensus of the Court finds a constitutional defect.

Here, the practical rule “laid down” is not doctrinal but institutional: even a deeply split Court producing highly reasoned opinions on both sides leaves the law intact absent four votes for unconstitutionality. This dynamic will shape future strategic choices by litigants and may incentivize incremental, as‑applied challenges rather than facial attacks.

V. Simplifying Key Concepts

A. Facial vs. As‑Applied Vagueness Challenges

• As‑applied vagueness challenge: “In my particular case, the statute didn’t give me fair notice or allowed arbitrary enforcement.” The remedy is usually limited to that application.
• Facial vagueness challenge: “The statute is so unclear that it is invalid from the outset, for everyone.” The remedy is to treat the law as if it were never enacted.

In North Dakota, past practice has been to insist that, outside the First Amendment, a vagueness challenger must at least show the statute is vague as applied to them before asking that it be struck down facially.

B. Objective vs. Subjective “Reasonableness”

• Objective standard: What would a hypothetical “reasonably prudent” person (here, physician) do, given the same facts? The defendant’s actual beliefs or perceptions are less important.
• Subjective standard: What did this defendant honestly believe in the moment, given what they knew and perceived? The law excuses conduct if that belief was honestly and reasonably formed, even if later shown to be mistaken.

North Dakota self‑defense law uses a subjective reasonableness standard; chapter 12.1‑19.1 uses an objective one. That discrepancy is part of Crothers’s concern.

C. Severability

“Severability” asks: If part of a statute is unconstitutional, can the rest stand?

• If the remaining portions can still function as the legislature intended, the invalid part can be severed.
• If the invalid and valid parts are so intertwined that removing the former distorts the overall scheme, the entire statute may fall.

In Fischer, the Court held that a bad‑check statute’s unconstitutional defense provision was integral to the legislative design, so the whole section was invalid. Crothers applies that logic here to the health‑risk exception and felony prohibition.

D. “Chilling Effect” Outside the First Amendment

In free‑speech cases, courts sometimes strike laws that may deter people from exercising their speech rights—even if the law might not be unconstitutional in every application. This is the “chilling effect” rationale.

The key dispute here is whether that concept should be extended to other constitutional rights—such as life‑ and health‑preserving medical care—and used to justify broader facial vagueness rulings. Crothers would extend it in a limited way; Tufte would largely confine it to First Amendment doctrine.

VI. Likely Impact and Future Directions

A. Immediate Practical Consequences

• Chapter 12.1‑19.1 is in force. Physicians who perform abortions outside the narrow statutory exceptions face class C felony exposure.
• Life‑ and health‑preserving abortions remain constitutionally significant. All justices accept, at minimum (and per Wrigley I), that a pregnant woman has a fundamental right to obtain an abortion when necessary to preserve her life or, at least, to avoid severe physical harm. How exactly that right interacts with the statute’s wording—in particular, in “borderline” medical scenarios—remains open terrain for future as‑applied litigation.
• Abortion access in North Dakota is now extremely limited. Apart from the narrow health/life and six‑week rape/incest exceptions, abortions are prohibited.

B. Doctrinal Uncertainty

Because no doctrinal position garnered four votes, several questions remain unsettled:

• Whether a heightened vagueness standard applies whenever a criminal statute burdens non‑speech fundamental rights (such as life‑preserving medical care), or whether heightened scrutiny is confined to First Amendment contexts.
• Whether pre‑enforcement, purely hypothetical facial vagueness challenges (outside speech) are ever cognizable in North Dakota.
• The precise contours of the art. I, § 1 natural‑rights guarantee as it applies to abortion beyond life‑threatening situations.
• The interplay between chapter 12.1‑19.1 and the general justification/excuse provisions of ch. 12.1‑05.

Future litigants will likely:

• Bring as‑applied challenges after concrete prosecutions or in narrowly cabined declaratory‑judgment actions focusing on specific, recurring medical scenarios (e.g., preterm premature rupture of membranes with high sepsis risk, severe preeclampsia, specific fetal anomalies that foreseeably lead to maternal harm).
• Argue that chapter 12.1‑19.1, properly interpreted, must be read to permit abortions in all circumstances required by the constitutionally recognized right to defend life and avoid serious bodily injury.

C. Legislative Drafting and Policy Response

Even though the statute survives, the Crothers opinion offers a sort of legislative road map for reducing vagueness risk:

• Consider defining key medical‑legal terms such as:
  • “Serious health risk”;
  • “Substantial physical impairment”;
  • “Major bodily function.”
• Clarify whether “mental health” or “cognition” can ever constitute a “major bodily function,” especially when intertwined with physical conditions.
• Consider whether to adopt a subjective “good‑faith” medical‑judgment standard (as Idaho did) for life‑saving abortions to align more clearly with self‑defense doctrines and minimize the risk of chilling emergency care.

Legislative inaction, combined with the deterrent effect of felony penalties, may cause exactly the chilling medical behavior Crothers fears, even if Tufte’s doctrinal view ultimately prevails. That tension may itself motivate statutory amendments in future sessions.

D. Broader Constitutional Methodology

The opinions also highlight a methodological divide on state constitutional interpretation:

• Original public meaning, fixed in 1889. Tufte’s opinion exemplifies a strict originalist approach: the meaning of Section 1 is set by how an 1889 North Dakotan would have understood it, in light of territorial codes and common law; subsequent changes in social attitudes or medical technology cannot expand those rights without constitutional amendment.
• Doctrinal development via fundamental‑rights reasoning. Crothers, while not rejecting original meaning, is more willing to treat the previously recognized fundamental right to life‑ and health‑preserving abortion as a basis for heightened protection under modern due process and vagueness doctrine—even where federal law (Dobbs) no longer provides such protection.

Because neither view commanded a majority, future courts remain free to align with either approach or to carve out intermediate positions, particularly where newer social and technological realities (e.g., prenatal diagnostics, advanced maternal‑fetal medicine) push beyond 1889 baselines.

VII. Conclusion

Access Independent Health Services, Inc. v. Wrigley is less a clean “precedent” than a snapshot of a deeply divided court at a pivotal moment. The binding result is clear: North Dakota’s near‑total criminal abortion statute remains in force because fewer than four justices were willing to declare it unconstitutional.

Beneath that per curiam surface, however, the opinions expose:

• A serious and unresolved debate over how far the state constitution’s natural‑rights clause protects abortion‑related decisionmaking;
• Competing visions of void‑for‑vagueness doctrine—one that flexes to protect non‑speech fundamental rights like life‑ and health‑preserving medical care, and one that insists such flexibility remain largely confined to the First Amendment;
• The difficulties of translating inherently uncertain medical risk assessments into determinative criminal‑law thresholds; and
• The structural force of North Dakota’s four‑vote rule, which allows statutes to persist amid judicial disagreement and puts the onus on the legislature—or on future, more fact‑specific challenges—to refine the law’s contours.

For now, physicians and pregnant patients in North Dakota operate under a statute that two justices believe is constitutionally sound and three justices believe is fundamentally defective. That unresolved split, combined with the life‑and‑death stakes of emergency obstetric care, virtually guarantees further litigation and perhaps legislative reconsideration. Until then, the case stands as a stark illustration of how constitutional structure (the four‑vote requirement) can be as outcome‑determinative as substantive doctrine in high‑stakes rights disputes.