North Dakota Minor Treatment Prohibition Defense

A treatment record can show facts, but its labels do not decide the case

The statute asks why the provider engaged in the listed practice. Purpose may be proved circumstantially, but the inference must connect to the charged person and act. A diagnosis may explain why care was considered without proving who prescribed, supplied, administered, authorized, or performed a charged act. A templated consent form may contain broad language that does not describe the provider’s own purpose on the charged date. Billing codes may identify services but not every clinical reason. A medication has pharmacological effects, but the State still must prove that it was supplied with the purpose specified in subdivision (1)(c).

A complete chronology often matters more than a single note. The defense should compare referral and intake materials, histories, diagnoses, laboratory results, prescriptions, dosage changes, pharmacy fills, orders, procedure scheduling, operative records, discharge instructions, follow-up notes, portal messages, and billing. It should identify who entered each statement, whether that person had firsthand knowledge, whether language was copied forward, and whether later documentation is being used to infer an earlier purpose.

“Willfully” is a defined culpability term. Section 12.1-02-02(1)(e) includes intentional, knowing, or reckless conduct. Under subsection (3), required culpability generally applies to conduct and attendant circumstances unless the statute provides otherwise. That does not mean every disputed fact can be resolved with the word “willfully.” The parties and court still must identify the conduct and circumstances to which culpability attaches, the evidence supporting each permitted mental state, and any circumstance the legislature made a grading fact or otherwise treated differently.

Recklessness under § 12.1-02-02 is not ordinary carelessness. It requires conscious and clearly unjustifiable disregard of a substantial likelihood of relevant facts or risks, with a gross deviation from acceptable standards of conduct. A negligent documentation error, misunderstood role, or clerical association is not automatically reckless. At the same time, a provider cannot defeat the charge merely by saying the provider did not know the statute. Subsection (5) ordinarily does not require culpability as to the fact that conduct is an offense.

Provider identity and participation deserve separate attention in group practice. An electronic signature can identify an account without proving who made a clinical decision. A supervising relationship does not itself establish that the supervisor performed the charged act. Routing, refill, standing-order, delegation, and co-signature functions should be reconstructed from audit logs and testimony. For subdivision (1)(c), the verbs “prescribe,” “dispense,” “administer,” and “otherwise supply” present different factual theories; a complaint should not treat them as interchangeable when the records point to only one.

Section 12.1-36.1-03 creates two theories outside the prohibition

Specified disorders of sex development

The first exception addresses a good-faith medical decision of a parent or guardian of a minor born with a medically verifiable genetic disorder of sex development. The statute includes two alternatives: external biological sex characteristics that are irresolvably ambiguous, with listed examples; or a physician diagnosis of a disorder of sexual development in which genetic testing determines that the minor does not have the normal sex chromosome structure for a male or female. The precise records supporting the parent or guardian’s decision, diagnosis, testing, condition, and good faith matter. The page should not broaden or narrow those words through nonstatutory shorthand.

Treatment begun before April 21, 2023

The second exception applies when performance or administration of the medical procedure on the minor began before April 21, 2023. That date is the enactment’s effective date. The timeline may require more than the date of one prescription: counsel should identify the procedure or course of care at issue, where and by whom performance or administration began, what records establish commencement, whether care was interrupted or changed, and how the State defines the later charged act.

In the litigation discussed below, the district court declared that the chapter does not apply to medical treatment of a minor who was receiving any practice identified in § 12.1-36.1-02(1) before April 21, 2023. The State did not appeal that interpretation. The Supreme Court recited the unchallenged judgment when defining the limited appeal. That history is important, but a page should not falsely describe it as a separate Supreme Court holding on a contested issue.

What the exceptions do not say

The chapter does not state a general exception merely because a minor consents, a parent consents, a clinician diagnoses gender dysphoria, an institutional policy approves care, or a provider considers treatment medically indicated. Those facts may be relevant to purpose, culpability, professional context, or a constitutional issue, but they do not create an additional textual exception. Likewise, the existence of an exception is not disproved simply because the State disagrees with a treatment decision; the statutory facts must be examined.

T.D. v. Wrigley upheld the medication provision against the claims actually appealed

On September 17, 2026, the North Dakota Supreme Court decided T.D. v. Wrigley, 2026 ND 162, docket 20260075. The published holding is significant, but its scope should be stated with care. The remaining physician plaintiff appealed the denial of declaratory and injunctive relief only as to § 12.1-36.1-02(1)(c), the medication provision, under Article I, §§ 1 and 21 of the North Dakota Constitution.

The Court held that minors do not have a fundamental right under Article I, § 1 to a particular course of medical treatment. It concluded that the challenged law did not classify on the basis of sex or transgender status, but by age and medical purpose, so heightened scrutiny did not apply. Under rational-basis review, the medication prohibition bore a rational relationship to the State’s legitimate interest in protecting the health and welfare of minors. The Court affirmed the district court’s denial of the requested relief.

The appeal did not place every issue before the Court. The minor plaintiffs and parents did not appeal their dismissals or the parental-right claim. The physician did not appeal the lack of standing to challenge subdivision (1)(a), and did not brief subdivisions (1)(b) or (d). Procedural-due-process and vagueness claims were not part of the merits issue resolved on appeal. The Court also noted that the facial challenge did not require it to decide a hypothetical case in which medication would preserve a minor’s life or health. A criminal-defense page should therefore say that the statute remains enforceable under the published decision while avoiding the broader and inaccurate claim that every possible constitutional application has been conclusively adjudicated.

The litigation record also affects the pre-effective-date exception. The district court declared that the Act did not apply to treatment of a minor receiving any listed practice before April 21, 2023. The State did not challenge that interpretation on appeal. Defense counsel should preserve evidence of pre-effective-date care and the final judgment rather than rely on a loose label such as “grandfathered.”

Constitutional litigation can continue to develop after a guide is written. Before a motion or charging decision, counsel should confirm later opinions, rehearing or mandate information, any federal proceedings, subsequent legislation, and case-specific standing and preservation. The current official court announcement and opinion—not summaries or political commentary—are the starting points.

A complete record should answer who did what, why, and when

North Dakota Rule of Criminal Procedure 16 allows written requests for documents and data, examination and test reports, and expert summaries within its terms. It imposes continuing disclosure duties and permits protective or modifying orders for good cause. In a case involving a minor’s medical information, discovery planning must protect lawful confidentiality interests without preventing either side from obtaining material evidence or preparing expert review.

Provider and participation evidence. Licensing records, credentialing, employment and privilege records, duty schedules, electronic-health-record audit logs, prescription credentials, signature and co-signature data, delegation protocols, pharmacy communications, procedure records, and testimony may show whether the accused was a covered provider and personally engaged in the charged verb. A chart bearing a name can be important without conclusively proving who authored, approved, or carried out every entry.

Age and identity evidence. The patient’s date of birth and the date of each charged act must be matched. Because the chapter includes an emancipated minor, emancipation does not take the case outside the statute, but mistaken identity, merged charts, family-account routing, or a date mismatch can still matter.

Purpose evidence. Treatment plans, diagnostic assessments, referral questions, consent discussions, procedure indications, dosage decisions, laboratory monitoring, progress notes, communications, institutional protocols, billing records, and expert testimony may bear on purpose. Complete context is essential. A record written for treatment or reimbursement may use different terminology and serve a different function than a criminal element.

Drug-theory evidence. For subdivision (1)(c), counsel should identify the exact medication, prescriber, order, dosage, intended use, pharmacy fill, administration record, recipient, timing, refill history, and any alternate indication. The statute’s three examples do not eliminate the broader wording “any drug” with the specified purpose, and appearance on the example list does not erase the purpose requirement.

Surgery and tissue evidence. Operative reports, pathology, imaging, preoperative diagnoses, informed-consent records, scheduling, surgeon and assistant roles, anesthesia and facility records, and postoperative findings may show what occurred and whether tissue was healthy or diseased. A medical expert may be necessary to explain terms and indications, but an expert cannot decide the ultimate legal standard for the jury.

Exception evidence. Genetic testing, diagnostic records, parent or guardian decision-making records, and testimony may bear on § 12.1-36.1-03(1). For subsection (2), preserve every record of care before April 21, 2023: initial prescriptions, administrations, procedures, orders, fills, appointments, out-of-state records, transfers of care, communications, and later continuation. Do not assume the earliest diagnosis is the same as the beginning of performance or administration.

Statements and digital proof. Interviews, texts, email, portal messages, internal chat, policy documents, and public statements must be attributed to the correct author and date. Rules 106, 401, and 403 address completeness, relevance, and unfair prejudice; Rules 602, 701, and 702 address personal knowledge and lay or expert opinion; Rule 801 governs statement issues; and Rules 901 and 1001 address authentication and electronic writings, recordings, photographs, originals, and duplicates.

The defense should preserve evidence without altering records, contacting a patient contrary to law or an order, or accessing information outside lawful authorization. Counsel can use subpoenas, discovery, expert consultation, and protective orders. A public-facing website should not invite a provider or family to send detailed protected health information through an ordinary web form.

A defensible case plan identifies the subdivision before debating policy

The complaint should identify the covered provider, patient age, charged date, specific practice, prohibited purpose, and penalty subdivision. If the State alleges a course of conduct, counsel should determine whether it charges one act, multiple acts, an ongoing offense theory, or alternative means. That distinction can affect notice, unanimity, limitation analysis, discovery, severance, and sentencing. Broad political disagreement does not cure a vague charging theory.

At the omnibus stage, North Dakota Rule of Criminal Procedure 17.1 permits the court to address discovery, motions, procedural and constitutional issues, and further investigation. Rule 16 requests should be tailored to the actual theory: complete charts and audit data, pharmacy and facility records, tests and expert materials, investigator notes and recordings, warrants and returns, and communications used to infer purpose. Protective orders can address sensitive information, but the parties should avoid a protective regime so restrictive that experts cannot meaningfully analyze the evidence.

Expert evidence may be relevant to medication, dosage, clinical indications, genetics, pathology, medical terminology, records systems, and professional roles. Rule 702 requires more than credentials; the opinion must fit the issue and rest on an adequate basis. The court, not an expert, instructs the jury on statutory meaning. Counsel should identify where the expert is explaining medicine or records and where a proposed opinion crosses into a legal conclusion.

Jury instructions should preserve the common gateway and the charged theory. A shorthand instruction that the defendant “provided gender-affirming care” risks collapsing provider status, age, statutory definitions, purpose, conduct, culpability, and exceptions into one disputed label. The verdict form should distinguish a felony subdivision from the misdemeanor drug subdivision when the charging theory or evidence presents alternatives.

A plea factual basis should be equally specific. An admission that a provider treated a minor is not necessarily an admission to the prohibited purpose, a listed practice, willful culpability, or the absence of an exception. Before any plea, counsel should address the criminal ceiling, licensing-board exposure, employment and credentialing, reporting, immigration where relevant, record use, and whether the judgment accurately identifies the misdemeanor or felony theory.