DFL lawmakers want to end a state report on abortion data in Minnesota

Abortion remains a matter of intense public interest in Minnesota as state legislators debate and enact new laws to protect and expand access to the procedure after the end of Roe v. Wade. 

But the public could lose a host of basic information about abortions in Minnesota if DFL state lawmakers pass a bill meant to safeguard patients from invasive questions that has also drawn the ire of transparency advocates and Republican lawmakers.

The measure would repeal a wide swath of regulations on abortion, such as a 24-hour waiting period and a parental notice requirement for minors. Most of those restrictions were struck down by a Ramsey County District Court judge last year, who ruled they violated the state constitution.

But the DFL bill (HF91/SF70) would also eliminate a law — the one thing the Ramsey County judge upheld — that requires the Minnesota Department of Health to collect and publicly report extensive data from abortion providers every year in Minnesota. 

The data released by MDH is summarized and anonymized, but the stats do show a wide range of information: the total number of abortions, the method, the reason for an abortion, how far along in gestation the abortion happens, the age of the pregnant woman, complications, race and ethnicity, and the state of residence for each patient.

“We don’t need to make people reveal their private reason for wanting to have an abortion,” Liebling said. “We don’t need to make them reveal the circumstances of their becoming pregnant, whether it was a sexual assault or something else. You know, I’m sorry but I don’t think the public has a right to know that.” (The law says a patient can refuse to answer that question.)

Opponents of Liebling’s bill have argued the public should have a baseline of facts about abortion. And it’s not just anti-abortion advocates who have used the data to bolster their arguments. Those who hope to expand abortion access have also used statistics released by MDH or other state health departments to either make the case for legislation or advance knowledge of the issue.

The information has been repeatedly used by news outlets, including MinnPost, the Star Tribune and MPR News, often to bring clarity to murky debates such as the number of abortions that take place later in pregnancy. And the government-backed data could shed light on what effect the reversal of Roe is having on Minnesota, as it is now one of the only states in the Upper Midwest with unrestricted abortion access.

“The statistical availability of this kind of information is useful I think to everybody, no matter what your position on the underlying abortion question is,” said Matt Ehling, a board member at the Minnesota Coalition on Government Information. “It’s good to have hard facts about a controversial topic like this out in the public so everybody can have access to them.”

What data MDH asks abortion providers to report

Current law on data collection can be traced to 1998, and requires providers to fill out paperwork with 13 categories of information including:

• The number of abortions performed every month
• The method of each abortion
• The approximate gestational age of a fetus
• The age of the woman
• The reason for the abortion
• Whether the pregnancy was a result of rape or incest
• Whether there were any complications
• Whether the abortion resulted in a “born alive infant”
• Whether the abortion was paid for with state funds
• Whether the patient previously had an abortion

MDH then summarizes and reports that information every year. In the most recent data compiled before Roe was overturned, Minnesota reported 10,136 abortions in 2021, which is in line with the average over the past decade. But data also show a long-term decline in the proportion of Minnesota residents getting an abortion.

People in their 20s and 30s made up the largest share of abortion patients in Minnesota in 2021. The most common reason patients gave for having an abortion was not wanting children at the time. The second most common answer given was unknown, or a patient refused to answer.

Most abortions — 69% — took place at an estimated gestational age of under nine weeks, and 88% in 2021 took place within the first trimester. Only one abortion took place after 24 weeks.

Much of the statistics gathered by MDH, including, notably, some of the information from questions that have been criticized as most invasive, are not required under current state law. But MDH asks abortion providers to collect it anyway. The state agency has been overseen by DFL governors for more than a decade.

That extra info includes demographic data that show Black, Hispanic, Asian, and American Indian women were disproportionately abortion patients. MDH also collects and reports information showing education level, marital status, if a patient traveled from out of state, whether patients have given birth before, and more.

“There is no law requiring us to collect and report these additional demographics data,” said MDH spokesman Scott Smith. “The decision pre-dates current staff but we’re guessing it’s based on the CDC abortion reporting requests, as they like to report on many of these demographics.”

The state has published online a Health Department rule asking abortion providers to submit that information on race and a host of other things not required under current Minnesota law. Rules are established by agencies based on authority granted in existing law. 

MDH has even ditched some of its additional questions recently. The latest report on 2021 information says the agency previously asked about contraceptive use at the time of conception. But MDH dropped that, saying the accuracy of the data was questionable and was of little or no value to public health.

Regardless, the DFL bill would repeal the MDH rule. And it would also nix the law that requires some data collection.

Why a judge upheld the data gathering

Before lawmakers considered repealing the data collection law this year, it was challenged in a case brought by several organizations including Gender Justice.

In the lawsuit, plaintiffs asked the court to strike down many Minnesota laws as unconstitutional based on the 1995 state Supreme Court ruling that established a right to the procedure.

Those restrictions included the parental notification law, the waiting period, and a requirement that providers give patients information about the risks of an abortion that many health officials argue are misleading or wrong.

One doctor, Carrie Terrell, argued that the process to collect data is extensive and burdens both patients and providers. Terrell said the reports waste time that could otherwise be spent on patient care. And she argued that the laws coerced the disclosure of information “under threat of criminal prosecution and denial of care.”

The abortion rights groups also argued that public health information on abortion is available in some fashion through the federal government or research organizations like the pro-abortion rights Guttmacher Institute.

Judge Thomas Gilligan sided with the plaintiffs on most issues. But he did not agree on the reporting laws. While he struck down criminal penalties that could be tied to some of the information gathering, he ruled that the data collection itself did not infringe on the fundamental right to access abortion care.

Gilligan wrote that some of the information could be considered invasive, but he said a patient can decline to respond. And Gilligan argued the information required by the law would be medically relevant and does not appear, based on “undisputed facts,” to “significantly impact either abortion access or the decision to have an abortion.”

“Adding minutes to the administrative work of an abortion clinic, or physician, or its staff in reporting information that the state collects for public health purposes is de minimis at best and does not appear to directly increase the cost of abortion care,” Gilligan wrote. “This collection and reporting do not seem appreciably different from the administrative work that providers, physicians and staff do on a daily basis in providing patient care, facilitating private or governmental health insurance claims, or reporting live births or deaths.”

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Democrats want to repeal the law anyway

After that ruling, many Democrats still hope to repeal the data collection law.

Liebling said she likes reading the MDH reports because they have interesting information. But she said the court was addressing whether the abortion reporting laws are constitutional, not whether they are good policy. She said lawmakers can reach a different conclusion on the latter question.

Liebling maintains that after 25 years of collecting information, there’s plenty of information about abortion. She said abortion is singled out compared to other medical procedures, invades the privacy of patients and burdens abortion providers. 

“They have to ask all of this really intrusive, detailed information in the course of providing the service,” she said. “It’s not medically necessary information; it’s information to be given to the public.”

The bill is sponsored in the Senate by Sen. Erin Maye Quade, DFL-Apple Valley, a special projects advisor for Gender Justice. Maye Quade said reporting laws are often meant to work in tandem with limits on the procedure to make abortion less accessible.

It’s unclear if the legislation has enough support to pass Minnesota’s DFL-controlled Legislature. But bills supporting abortion access have wide backing in the party. Maye Quade said she expects a vote on the bill in the Senate.

What information might still be available

If Minnesota’s law were repealed, what information on abortion would still be available? Would the public know even basic data, like how many abortions took place in the state?

It’s a bit complicated. Smith, the MDH spokesman, said the health agency “would have to look at the final legislative outcomes to determine potential next steps regarding the collection of abortion data.”

Minnesota does have a database for health care claims that would include abortions paid for by insurance from payers who report data to the state’s system. But that would not be “comprehensive or complete data,” Smith said.

It wouldn’t include abortions paid for outside of insurance, or by “commercial payers” that don’t report to the system, Smith said. “The current information MDH receives is a much richer set of information, almost none of which exists elsewhere.”

Outside of Minnesota, the Centers for Disease Control and Prevention does some abortion “surveillance” across the country. But states and providers do not have to provide abortion data to the CDC. For example, California has not given info to the feds for years.

Isaac Maddow-Zimet, a senior research associate for the Guttmacher Institute, said the organization does a periodic abortion provider census in which they ask every provider in the country to voluntarily give data on abortion like the number of abortions and some other information.

When they don’t get data voluntarily, Maddow-Zimet said Guttmacher can estimate based on other information or sometimes use statistics from state health departments. Many states collect some amount of abortion data, Maddow-Zimet said, though not all publish it and some don’t mandate abortion providers to give the information.

Maye Quade also argued that MDH and others could still collect data or conduct research purely for public health purposes, the same way they do for any other medical event like heart attacks. And other public health researchers and journalists can ask abortion providers to voluntarily provide information on trends in abortion.

Planned Parenthood has already noted an uptick in second-trimester abortions this year after the fall of Roe, though that information can be independently verified and accessed through MDH data under current law. “There is no reason for it to be collected in this way other than to criminalize providers,” Maye Quade said.

Debate over transparency and information

At the Legislature, the DFL bill has been met with resistance by Republicans. 

It’s clear that anti-abortion advocates prefer to keep the data to better understand who is having abortions and why. Some have argued the data can advance public health, and others say it can help them try to reduce the number of abortions by, say, addressing a barrier to having a child or knowing who to make outreach to.

Teresa Collett, director of the Prolife Center at the University of St. Thomas School of Law, said it’s more common for women in their 20s to get abortions now, when once a larger share of patients getting an abortion were in their teens. “These trends are significant and if we want to have a reasoned public health response, we need the information,” Collett said.

However, supporters of abortion access also use information published by MDH, or at the very least rattle off statistics backed up by the state report.

When Republicans argue Minnesota’s permissive laws allow a free-for-all of third trimester abortions, Democrats and abortion rights organizations will respond in part by noting that most abortions take place in the first trimester, and abortion later in a pregnancy is extremely rare.

And the MDH data is used by news outlets to inform the public about heated debates at the Legislature. A recent MPR News story on the issue of abortions later in a pregnancy analyzed statistics from 2008 until 2021 to show how few take place after about 20 weeks of gestation.

Maddow-Zimet, from the Guttmacher Institute, said his organization has a nuanced stance on abortion data. He said it’s broadly important for researchers to be able to analyze abortion, particularly counts of the procedure. But he said the desire for more data should be balanced with potential stigma, intrusive questions and risk of criminalization that could be tied to state requirements. Anything beyond basic counts and demographic characteristics can “really go beyond what’s needed for public health,” he said.

“I don’t think there’s anything wrong with states collecting data on abortion if that’s done thoughtfully and in a not onerous way,” Maddow-Zimet said. “I think that public health surveillance efforts are broadly useful for state health departments to do. Where I would say it’s trickier is that in doing mandated reporting of abortion, that’s where it can often end up being used to persecute providers or patients or create obstacles. The trade off isn’t necessarily one that’s always worth it.”

Meanwhile, on a copy of the forms MDH gives to providers that was included in the agency’s 2021 data report, MDH said the information collected is “very important from both a demographic and a public health viewpoint.”

The Health Department documents say the data provide “unique information on the characteristics of women having induced abortions.” That helps the state evaluate risks tied to abortion at different times in gestation and by the type of procedure used, the document says. “Information on the characteristics of the women is used to evaluate the impact that induced abortion has on the birth rate, teenage pregnancy and the health of women of reproductive age.” (Smith did not say if MDH has a stance on the bill.)

“There’s a wide chasm I think in people’s opinions within the state and country over abortion and abortion policy,” Ehling said. “But in a democracy I think the best way to address controversial issues is to make sure that there are common facts that people on both sides of an argument can have access to. This bill really makes it more difficult to find out some of the statistical factual information underpinning the abortion discussion.”