The opinion by Attorney General Wayne Stenehjem declared Senate Bill 2030 was “not unenforceable.” Stenehjem stopped short of deeming the bill constitutional or unconstitutional, but wrote that North Dakota University System officials should exercise “ordinary care and diligence” to be in compliance while avoiding constitutional conflicts.
Legislators are presumed to be complying with state and federal constitutions when passing bills, Stenehjem wrote in his opinion issued Wednesday, Nov. 3. The legislation has to be “clearly and patently unconstitutional” for him to rule against it, he wrote.
“Moreover, because it is the Attorney General’s role to defend statutory enactments from constitutional attacks, this office has been reluctant to issue an opinion questioning the constitutionality of a statutory enactment,” Stenehjem wrote.
NDUS Chancellor Mark Hagerott asked Stenehjem to review the legislation that was passed this spring. The initial intent of SB 2030 was to allocate more money to the Challenge fund, a matching grant program that provides $1 in state funding for every $2 in private donations for state colleges and universities.
Sen. Janne Myrdal, R-Edinburg, amended the bill to add language that would prevent schools from receiving those funds if they partnered with a group that performs or promotes abortions, unless the procedure would prevent a mother’s death. Legislators passed the bill, though Gov. Doug Burgum struck out criminal penalties.
Myrdal told The Forum Thursday she expected Stenehjem to uphold the bill, noting her amendment mirrors language that already exists in North Dakota law.
North Dakota Century Code states “normal childbirth” must be given preference and is supported by law over abortion. State agencies are banned from producing, distributing, publishing or endorsing materials that don’t give preference to childbirth, and funds cannot be awarded to agencies, counties, municipalities or other subdivisions that promote abortion unless it is necessary to save a mother’s life, according to state law.
Adding the amendment to the Challenge program legislation seemed to be the only way to get higher education leaders to listen, Myrdal said.
The move came after Myrdal made several requests of North Dakota State University to stop its partnership with Planned Parenthood. The school has received funding since 2012 to host educational programs aimed at preventing unplanned pregnancies.
In a May 29, 2019, letter to Myrdal, NDSU President Dean Bresciani said the school would not interfere with research if it complied with the law.
“If we attempted to control research, particularly in response to political pressure, then NDSU could be violating accreditation standards, which require academic freedom and political autonomy,” Bresciani wrote in the letter. “We cannot risk our accreditation because, without it, NDSU would not be able to accept any federal money, including student loans and grants.”
Bresciani also spoke out against SB 2030, suggesting that legislators wanted to “punish” NDSU.
“However, the principles of academic freedom and freedom of speech are fundamental to how NDSU, and all colleges and universities, operate and must be maintained for accreditation purposes,” he said during a legislative committee hearing.
NDSU has said it will not renew its partnership with Planned Parenthood this year.
Faculty from the university said they feared the legislation would restrict academic freedom and open doors to banning partnerships or curriculum on other topics legislators don’t like. NDSU Faculty Senate President Florin Salajan previously told The Forum he feared faculty may take their research to other schools.
Nursing professor Molly Secor-Turner, who secured the federal funding for the programs, left NDSU in August for a job at Montana State University. She said the legislative session made her decision easier.
Hagerott thanked Stenehjem for his response, noting the Challenge program has a long history of success in North Dakota.
“The information provided in the response will ensure our institutions continue the success of the program for the benefit of students,” Hagerott said in a statement.