The North Dakota Supreme Court ordered Romanick to reconsider the injunction by weighing the lawsuit's chance of successfully contesting North Dakota's law. The North Dakota Supreme Court went as far as to say that the judge's initial failure to do so "was a clear error of law."
On Oct 31, Romanick, rather than ending the injunction, doubled down on his initial decision. He wrote that there is a "substantial probability" that the law is unconstitutional, and that the law's effects are "not reasonably related to the goal of preserving life." He argued that if “women do not have a reasonable avenue in which to get safe abortions when their lives are in danger, the Statute does not serve its intended purpose.”
He went on to argue that the North Dakota Constitution might even convey some implied right to abortion (much like the US Supreme Court ruled for the federal constitution in Roe v. Wade).
“Whether the North Dakota Constitution conveys a fundamental right to an abortion is an issue that is very much alive and active. This issue does not have a clear and obvious answer. Therefore, the Court finds that (the Red River Women’s Clinic) has a substantial probability of succeeding on the merits through showing that there is a ‘real and substantial question’ before the Court.”
