Last month, the U.S. Supreme Court in Dobbs v. Jackson Women’s Health Organization removed the federal right to an abortion and left decisions about whether and how to allow the procedure up to states.
Leading up to and after the ruling, some states have moved to restrict abortion. But with a state district court ruling July 11 in Doe v. Minnesota that removed many of the laws restricting abortion in the state, Minnesota has gone the opposite direction.
On Thursday, Minnesota Attorney General Keith Ellison said he wouldn’t appeal the state district court decision on the grounds that doing so would be costly and likely unsuccessful.
“The people of Minnesota need to know what the law is in Minnesota when it comes to availability of abortion care,” he said in a statement emailed to press.
So. In the wake of Dobbs and Doe v. Minnesota, what is the law when it comes to abortion in Minnesota now?
A state Constitutional right
With Dobbs, the Supreme Court ruled the U.S. Constitution does not guarantee a right to an abortion, overturning 1973’s Roe v. Wade. That changed the abortion landscape in some U.S. states overnight, but it didn’t immediately change it in Minnesota.
That’s partly because a 1995 Minnesota Supreme Court case, Doe v. Gomez held that the state’s constitution protects abortion. The Gomez ruling also gave low-income women on medical assistance access to public assistance to fund abortions.
“The right of privacy under our Constitution protects not simply the right to an abortion, but rather it protects the woman’s decision to abort; any legislation infringing on the decision-making process, then, violates this fundamental right,” Gomez reads.
“(That’s) getting at the idea that it’s not just about ‘is abortion criminalized or not?’, it’s also about actually having access to abortion,” said Jill Hasday, a professor at the University of Minnesota Law School, of the Gomez decision.
Last month in Doe v. State of Minnesota, a Ramsey County state district court judge leaned heavily on the argument of access, Hasday said, to declare unconstitutional almost all of Minnesota’s abortion restrictions. That included a 24-hour waiting period, an informed consent script requiring specific information be given to patients, a requirement that minors notify both parents or get a court waiver before getting an abortion, a rule that allows only physicians and not other medical professionals to perform abortions, and a rule that abortions after the first trimester be carried out in a hospital.
Laws on the books
While most of the laws specifically restricting abortion in Minnesota were repealed by the state district court ruling, there remain some laws surrounding the procedure.
The one challenged law the judge’s ruling left in place was a reporting requirement, which requires abortion providers to report information, including demographic information about those seeking abortions and about the stage of gestation of fetuses aborted, to the state. The state is required to make an annual report to the Legislature.
Jess Braverman, the legal director for Gender Justice and one of the UnRestrict Minnesota lawyers representing the plaintiffs that sued to remove the restrictions in Doe, said the plaintiffs have not made a decision about whether or not to appeal the decision on the reporting requirements but has 60 days after the July 11 ruling to do so.
State law also requires fetal tissue resulting from an abortion after the stage at which “there are cartilaginous structures, fetal or skeletal parts” be buried or cremated. The Doe plaintiffs also sued to remove this requirement. “We challenged it not only on privacy grounds, but on religious grounds, because the First Unitarian Society argued that it’s equating a fetus with personhood, and that’s contrary to (their) religious beliefs,” Braverman said.
The state district court judge did not rule on the constitutionality of this law in Doe after what Braverman said was some confusion about whether the plaintiffs had dismissed the fetal tissue claim to move the case forward. She said she expects that to be sorted out soon.
Another law governing abortion that remains in place is the Born Alive Infant Protection Act, which requires an additional doctor other than the one performing the abortion to be on hand in abortion cases past 20 weeks to “take all reasonable measures consistent with good medical practice,” including “to preserve the life and health of any born alive infant that is the result of the abortion.”
Though an abortion ban after a viability is in state law and is commonly referenced on abortion information websites, it appears to be more of a standard of practice than an enforceable law. Experts told MinnPost earlier this month they believed that because of a 1976 court order that makes the viability ban unenforceable, it would not generally be illegal for an abortion provider to perform an abortion after a fetus is possibly viable in Minnesota. Still, they said it would be extremely difficult to find a provider who would do so unless the life of the woman was at stake 0r the fetus had abnormalities incompatible with life.
Laws could change
In the wake of Doe, Minnesota is one of just a few states expanding access to abortion, said Emily Bisek, a spokesperson for Planned Parenthood North Central States.
The Center for Reproductive Rights, which advocates for abortion access, lists Minnesota as one of 10 states with expanded access to reproductive rights. Eleven states are listed as “protected,” and the remaining are labeled “hostile” or “illegal.”
In the wake of the federal and state court cases, abortion has become a central issue in the upcoming November election.
In Minnesota, the governor and all 201 legislators are up for reelection in November. Though Gomez remains in place protecting the right to an abortion, the Legislature has the power to make laws regulating the procedure, which the governor can sign or veto.
“The election will help shape what might be possible going forward, whether we can have even the most common-sense sorts of abortion policies,” said Paul Stark, the spokesperson for Minnesota Citizens Concerned for Life. While he said Dobbs was a major victory removing the federal obstacle to abortion restrictions in states, the Minnesota district court decision creates obstacles at the state level.
“We’re still going to pursue pro-life legislation,” he said, listing parental notification, limits on abortion later in pregnancy and requiring medication abortions to be conducted in-person as some laws that may be pursued.
As for what types of legislation could pass court muster, that partly depends on who’s on the bench — another thing the election could change in time. But Hasday, the University of Minnesota law professor said that as she sees it, “current Minnesota Constitutional law is very hostile to restrictions on abortion, period.”
“I think the district court (in Doe) brought out even more clearly than the Supreme Court (in Gomez) … that the right to privacy is not just about ‘do you have a formal right to privacy’ but it’s also actually about your ability to access abortion,” Hasday said.