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Abortion has been a top legal and political issue since May, when an unprecedented leak in of a pending U.S. Supreme Court decision overturning the 1973 ruling that legalized it nationally. Both state and national opinion polls show it’s among the top issues voters are considering this election.
What could candidates running for office in Minnesota do to restrict abortion or further protect access? Here are answers to questions about the issue and how it is playing out in Minnesota in the days leading up to Nov. 8.
Q: Is abortion legal in Minnesota?
A: Yes. While the 1973 U.S. Supreme Court ruling in Roe v. Wade found that there is a right to abortion under the U.S. Constitution, subsequent rulings of the Minnesota Supreme Court found similar protection in the Minnesota Constitution. When the current U.S. Supreme Court overturned Roe v. Wade in June in a case called Dobbs v. Jackson Women’s Health Organization, the state court rulings preserved abortion access in Minnesota.
Q: Does the state constitution specifically make abortion legal in Minnesota?
A: The word “abortion” does not appear in the state constitution. Instead, state courts have interpreted that the Minnesota Constitution accounts for privacy rights, including health care choices made by pregnant women. When the state court ruled in Doe v. Gomez in 1995 that abortions for low-income women must be covered by Medicaid, it first had to rule that there is a fundamental right to abortion under both federal and state rulings. The same ruling found that women on Medical Assistance must have the cost of abortions covered by the state.
“This court has never directly addressed, however, whether the right of privacy under the Minnesota Constitution encompasses a woman’s decision to terminate her pregnancy,” the 1995 Doe court wrote, citing four sections of the state constitution.*
It then discussed whether access to abortion was a fundamental right, a threshold that needed to be met.
“Fundamental rights are those ‘which have their origin in the express terms of the Constitution or which are necessarily to be implied from those terms.’ In the present case, plaintiffs allege that the fundamental right implicated in this case is the right of a pregnant woman to decide whether to terminate her pregnancy. The State has conceded this point and has adopted the view that ‘the state constitution protects a woman’s right to choose to have an abortion.’ We agree.”
But the Roe ruling left room for legislatures to regulate abortion and many laws were passed including viability standards – the point at which abortions for non-medical reasons would not be permitted, requirements for information that must be presented to pregnant women and waiting periods. As noted above, most of those have been found unconstitutional by federal and state courts.
Q: Have state lawmakers successfully placed restrictions on abortion in Minnesota?
A: Not many. State lawmakers approved a 24-hour waiting period, required that an informed consent script be provided to those seeking abortion, required that only physicians perform abortions and that they be done in hospitals after the first trimester. They also required that minors notify both parents or get a court waiver of that provision.
But earlier this year in a case called Doe v. State of Minnesota, a Ramsey County judge found that all of those abortion restrictions violated the state Supreme Court ruling in Doe v. Gomez.
One challenged law that the judge left intact was a requirement that medical information about abortions done in the state be reported to the state. Also intact is what is called the Born Alive Infant Protection Act which requires a second doctor be present for abortions done after 20 weeks to take action “to preserve the life and health of any born-alive infant that is the result of the abortion.”
Much earlier, in 1976, a federal court had found the state’s statutory viability standard – a provision that makes abortion illegal after a point in the pregnancy when a fetus could be viable – unconstitutional.
Then, earlier this year in a case called Doe v. State of Minnesota, a Ramsey County judge found that most other abortion restrictions were violations of the state Supreme Court ruling in Doe v. Gomez. Those invalidated restrictions included a 24-hour waiting period, the requirement that an informed consent script be provided to pregnant women, that only physicians perform abortions and that they be done in hospitals after the first trimester of gestation.
Also invalidated was a requirement that minors notify both parents or get a court waiver of that provision.
One challenged law that the judge left intact was a requirement that medical information about abortions done in the state be reported to the state. Also intact is what is called the Born Alive Infant Protection Act, which requires a second doctor be present for abortions done after 20 weeks to take action “to preserve the life and health of any born-alive infant that is the result of the abortion.”
Q: What can the Minnesota Legislature do to change that?
A: Not much. The state did not appeal the UnRestrict Minnesota lawsuit (Doe v. State of Minnesota), so that ruling remains in place. Depending upon the outcome of the election, there could be majorities in the House and Senate to adopt bans or further restrictions. But even if they were not vetoed by whomever is elected governor next week, they would likely be found invalid by the state Supreme Court.
Abortion is a major issue in the 2022 election, with Gov. Tim Walz and DFL candidates saying they would fight to keep abortion legal and GOP nominee Scott Jensen and GOP candidates saying the court rulings would prevent any changes to the status quo. Jensen opposes abortion and said early in the campaign he would work to ban it. Since gaining the GOP endorsement he has modified his position, arguing that he lacks power to change current court rulings. He also has supported broader access to birth control, including morning-after pills.
Q: But couldn’t the state constitution be amended to change the privacy sections that were cited in Doe v. Gomez?
A: Yes, but it is not a simple process. Both houses of the Legislature would have to adopt an amendment by a majority vote. Governors do not have to sign such a measure. But to be adopted, it would need to be approved by a majority of the voters casting ballots in that election. That means that some who vote in that election but don’t vote on the constitutional amendment would be a negative vote on passage.
A different question is, would such an amendment pass? Both polling and the recent experience in Kansas where an anti-abortion measure failed makes it unlikely that an amendment banning or restricting abortion would succeed with voters. Rep. Kurt Daudt, the Republican in line to be the next House speaker if the GOP wins a majority, has said he would not push such an amendment.
Conversely, Democrats could try to place a measure affirming abortion access should they control the Legislature. Three states — California, Michigan and Vermont — have constitutional amendments on the ballot this year to secure abortion access.
Q: What do the voters think?
A: Opinion polling the the United States and in Minnesota report strong majorities for keeping abortion legal, though there is also support for some restrictions such as at what stages of a pregnancy abortions should be allowed for non-medical reasons.
In the most-recent MinnPost/Embold Research poll, 67% of those polled between Oct. 10 and Oct. 14 said they oppose a complete abortion ban in Minnesota, including 56% who said they would “strongly oppose” a ban.
There was strong support for abortions to be legal in the case of pregnancies that result from incest and rape, in cases where the pregnancy is not viable, or if the life or health of the pregnant woman is at risk. But when asked if they supported abortion after the second trimester of pregnancy, only 36% said they did.
Q: What power does a governor have over the makeup of the state Supreme Court, which could weigh in on future abortion restrictions?
A: Good question. First, a review of what Democrats and Republicans say about this.
DFLers: It’s important to keep a DFL governor to assure that future appointees to the Minnesota Supreme Court will uphold Doe and the Unrestrict Minnesota rulings.
Republicans: GOP nominee for governor Scott Jensen said at the final debate that Minnesota has an elected judiciary and the makeup of the court is up to them.
The reality: While the state judiciary is elected, including the seven members of the state Supreme Court, in practice the state courts are appointed. That’s because sitting judges often leave office early – either voluntarily or because they reach the mandatory retirement age. Governors then make appointments. And it is rare for those appointees to be challenged at election time and if they are challenged, it is rare for them to lose.
A sitting state Supreme Court justice hasn’t lost reelection since 1946, and before that it happened in 1916. Also since 1946, only twice have voters been presented with a Supreme Court race without an incumbent running, most recently in 1992 when Justice Alan Page won an open seat.
Q: What else could a governor do regarding reproductive health access?
A: Walz issued an executive order the day after the U.S. Supreme Court’s Dobbs decision was released that sought to protect access to abortion from women coming from outside the state. It ordered state agencies to protect people providing, assisting, seeking or obtaining reproductive health services in the state. It also prohibits state agencies from cooperating with other states trying to sanction women who arrive in Minnesota for abortions or take actions against abortion providers. The state would also resist extradition requests from other states trying to enforce abortion bans.
Q: What has attorney general Keith Ellison done on the issue of abortion?
A: Minnesota’s AG is tasked with defending state law in court, so when restrictions on abortion were challenged in court, incumbent DFLer Keith Ellison initially defended them even though he personally supports abortion access.
When those limits on abortion were struck down in district court however, Ellison declined to appeal the ruling. He said it was a business decision, not a political one. The AG said he spent lots of staff time and resources defending the case and Ellison says he believed their chance of winning on appeal would be slim. Some anti-abortion groups criticized that decision to not appeal, saying it was motivated by Ellison’s abortion stance.
Ellison has promised to fight any efforts to extradite people who travel from a state where abortion is illegal to have the procedure done in Minnesota, and he also said he wouldn’t prosecute anyone who travels to Minnesota for an abortion.
An AG can also join broader lawsuits over abortion. In September, Ellison joined a coalition of attorneys general attempting to block any Texas effort to punish organizations that pay for pregnant Texans get an abortion outside of the state.
Q: How might Republican Jim Schultz approach abortion access if he’s elected attorney general?
A: Republican Jim Schultz previously served on the board of an anti-abortion organization and said at the GOP convention in May that “we all know that the unborn child is a human person deserving of legal protection.”
He also previously said he would go on “offense” on the issue, criticized policies that require pharmacists “to prescribe abortion drugs,” and said he would defend people’s rights to act according to their faith.
Schultz currently says he supports a ban on abortion after 20 weeks, which would allow the vast majority of abortions, and he said he was disappointed Ellison did not appeal the ruling striking down abortion restrictions. But he said he would defend Minnesota law and, in a debate on MPR News, he promised not to “leverage my office for abortion policy.”
Schultz said at the debate the question over pharmacists was an “ancillary issue” but said “we have to create space for religious minorities in our country.”
Q: Late-term abortions are legal in Minnesota, but are they common?
A: They are not. According to the most recent report on abortions in Minnesota covering the calendar year 2021, there were 10,136 abortions done that year. But only 159 of those abortions were done on fetuses after the 20th week of gestation and just one was done between 25 and 30 weeks.
The vast majority of abortions – 69% – were done in the first nine weeks of pregnancy.
In 2021, 9,127 abortions involved residents of Minnesota, and the rest were from other states primarily Wisconsin, South Dakota, North Dakota, Iowa and Michigan. That share could change as other states in the Midwest restrict access to the procedure.
Q: Has Minnesota seen an uptick in out-of-state residents seeking abortions since Roe was overturned?
A: There is no data on that yet (the state’s abortion report comes out annually in the spring), but anecdotally, yes. Providers in the state have reported increases in demand for surgical and medical abortions coming from pregnant women in states that have begun restricting the procedure.
Nationally the number of abortions is down, especially in the South. But there is evidence that the number of procedures in states that have maintained access have seen increased demand. And the shipment of abortion pills, including from overseas suppliers, has increased.
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*“Specifically, in Jarvis v. Levine, we indicated that the right of privacy under the Minnesota Constitution is rooted in Article I, Sections 1, 2 and 10. Article I, Section 1 provides: ‘Government is instituted for the security, benefit and protection of the people.’ Article I, Section 2 provides: ‘No member of this state shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers.’ Article I, Section 10 provides: ‘The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated.’”
“We also find Article I, Section 7 applicable: ‘No person shall be held to answer for a criminal offense without due process of law nor be deprived of life, liberty or property without due process of law.’”
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