Republicans who want to significantly limit abortion in Minnesota have few options because of rights afforded by the Minnesota Constitution.
The GOP can try to reverse or alter a 1995 state Supreme Court ruling in Doe v. Gomez on abortion. Or the party could send a constitutional amendment to Minnesota voters.
Democrats in recent weeks have raised the possibility of a statewide referendum in 2024 on abortion, saying Republicans are likely to try such a maneuver if they control the Minnesota House and Senate after the fall elections.
“An anti-choice governor like Scott Jensen could use the platform to advocate for and manipulate the additional constitutional amendment to ban abortion in all circumstances,” Walz said during a June news conference, referring to his presumptive Republican opponent in the governor’s race.
Prominent Republicans have not talked this year about a constitutional amendment to restrict abortion. Jensen, in fact, told MPR News last week he wouldn’t push a vote on one if elected.
One reason Republicans might hesitate to pursue the option: the GOP lost a constitutional amendment vote on banning same-sex marriage in 2012, and several Democratic-leaning states around the country have rejected measures to restrict abortion.
Constitutional amendments in Minnesota
Minnesota does not allow ballot measures that would simply change state law. Such referendums are common in western U.S. states and are an option in other parts of the country. But voters can amend the state constitution.
To do so, the Legislature must approve by simple majority a measure proposing the constitutional amendment. It can’t be blocked by a governor and doesn’t need a signature. Then the proposed amendment gets a statewide vote in the following general election.
Since Minnesota became a state, 213 constitutional amendments have been voted on, and only 120 have been adopted. The most recent was in 2016, when voters adopted an amendment creating a council that sets salaries for legislators.
But 2012 was more notable for intense political battles over two constitutional amendments supported by most Republicans and some Democrats that would have banned same-sex marriage and imposed new voter identification requirements. Both were rejected.
Republicans controlled the House and Senate at the time and forwarded the measures to voters.
Richard Carlbom, who was campaign manager for Minnesotans United for All Families, which opposed the ban on same-sex marriages, said an anti-abortion amendment would face serious hurdles in Minnesota.
In the 2012 election, polls showed voters favoring a ban on same-sex marriage for much of the campaign. “We were really far behind” a few months before the election, Carlbom said. There were good reasons for donors to not invest in them because there was a history of similar measures passing in other states, Carlbom said.
Opponents of the amendment had to create a system and a narrative that could gain momentum and excitement that could propel them to victory, he added.
But Carlbom said he believes abortion access supporters would be starting out ahead if Republicans proposed banning most or all abortions. A June poll from MinnPost and Change Research found more than two-thirds of voters surveyed opposed a total ban on abortion, and 64 percent supported first trimester abortions. Exemptions for rape, incest and to save the life of a pregnant woman were widely popular.
Forty-seven percent of voters, a plurality, said abortion should be illegal in the second trimester. The poll found 18 percent weren’t sure. At the same time, a plurality of 49 percent also said abortion should be legal “in all instances in which a woman chooses to have an abortion and her doctor is able to perform it safely.”
In order for constitutional amendments to pass, the measure needs a ‘yes’ vote from a majority of those voting in the entire election, not just a majority of the people voting on the specific question. That means people who don’t vote on a constitutional amendment, but vote on anything else, count as ‘no’ votes.
“You’ve got to figure out how to generate energy, excitement and momentum that gets you from 67 percent opposition to, in Minnesota, 51 to 52 percent support,” Carlbom said.
Lawmakers could propose more limited restrictions on abortion. Some states have held referendums on whether the constitution includes a right to abortion, which doesn’t outlaw the practice but allows lawmakers to regulate or restrict it if they choose.
Dan Hall, who was a Republican state Senator from 2011 to 2020 and helped propel the same-sex marriage amendment to the ballot, said he would support a constitutional question on the ballot against abortion.
“Anything they can do to solidify the idea that abortions shouldn’t be happening, that there are other alternatives, I think that’d be the best way,” Hall said. “If a constitutional amendment was to be part of that, that’d be terrific.”
But, he was skeptical of the chances of such an amendment. “I’m not sure the state would accept that at this point,” Hall said.
Top Republican leaders at the Legislature haven’t detailed how they will approach abortion at the Legislature next year. None have openly called for a constitutional amendment. Sen. Michelle Benson, a retiring Republican from Ham Lake, told reporters in May after the leaked decision overruling Roe that Minnesota becoming “more pro life” would require “some changes in our judiciary.”
Several Republican senators declined to comment on their strategy for abortion policy.
Would Democrats want an amendment fight?
Not only did the constitutional amendment to ban same-sex marriage fail, but voters in 2012 elected Democratic majorities in the state House and Senate, and lawmakers subsequently passed a law authorizing same-sex marriage.
The DFL has repeatedly argued that abortion will fire up voters and help them in the midterm elections. So, would Democrats welcome a ballot measure on abortion?
House Speaker Melissa Hortman, DFL-Brooklyn Park, said in an interview that she believes Republicans would pursue a constituional amendment on abortion if they control the House and Senate. But she said she wouldn’t want such a ballot measure because “fundamental rights should never be up for a vote.”
Walz said he worries about the “thumb on the scale” from a Republican governor’s office that could somehow sway a referendum if they “don’t take an ethical approach.” But he said he doesn’t “fear Minnesotans voting on this.”
“Just like we did not fear them voting on marriage equality and we didn’t fear them voting on voter ID because Minnesotans understand that,” Walz said. “I just think in this climate, it’s important for everyone to know what the risks are.”
Recent history on abortion ballot measures
One state where voters recently weighed in on abortion is Colorado, which voted similar to Minnesota in the 2020 presidential election.
In 2020, Colorado voters rejected a ballot measure by 18 points that would have banned most abortions after 22 weeks into a pregnancy. That was a bigger margin than Biden’s victory in the state.
Oregon, another state controlled by Democrats, voted in 2018 against a constitutional amendment that would restrict public funding for abortions by a 64 to 35 percent margin.
Ballot measures or constitutional amendments restricting abortion have passed elsewhere in the country, in Republican-leaning states. That includes Louisiana, where voters in 2020 passed a constitutional amendment by a 24-point margin saying there was no right to abortion in the state constitution.
Alabama voters in 2018 approved a ballot measure changing the state constitution to say Alabama recognizes and supports “the sanctity of unborn life and the rights of unborn children, including the right to life.”
One closer election happened in deep-red Tennessee in 2014, where voters by a 5-point margin said their state constitution did not prevent the Legislature from regulating abortion.
There are also somewhat recent examples of conservative states voting down anti-abortion policy.
One is North Dakota, where voters in 2014 widely rejected a constitutional amendment that would give fetuses legal rights by stating the right to life of every human “at any stage of development must be recognized and protected.”
In 2008, South Dakota voted down 55 to 44 a ballot measure that would have banned all abortions except in cases of rape, incest or to protect the life of a pregnant woman.
Abortion policy this year will be on the ballot in eight states, according to the Washington Post.
Editor’s note: This story has been updated to clarify a governor’s inability to stop a constitutional amendment passed by the House and Senate.