Editor’s note (May 22, 2023): This story was published ahead of the release of a final package of legislation containing the elimination and alteration of abortion statutes in Minnesota. That bill, which is expected to be passed by the House and Senate on Monday, is now publicly available here.
State courts have struck down a host of Minnesota limits on abortion, and while unenforceable, the Legislature is now expected to erase many of them entirely from the law books.
That would mean the certain end to restrictions like a 24-hour waiting period that Republican legislators had sought to keep, according to Rep. Tina Liebling, DFL-Rochester, who spoke to MinnPost on Saturday ahead of a conference committee’s release of final bill language.
Democrats who control the Legislature also plan to cut grant funding for pregnancy centers advocating against abortion. Liebling said a deal between the House and Senate would stop making abortion providers report some data on the procedure to the state, though Minnesota will keep collecting certain basic information on abortions that is now published every year by health officials.
“The reporting is going to be not repealed but substantially revised,” said Liebling, who chairs the House’s Health Finance and Policy Committee. The full details of the agreement, which are part of a larger spending and policy package tied to health and human services, have not been released yet.
DFL lawmakers have already taken significant steps to protect abortion access in Minnesota this year in the wake of the U.S. Supreme Court reversing the landmark Roe v. Wade decision. That decision proved to be deeply unpopular in Minnesota, where Democrats won House and Senate majorities in November partly because of the party’s support for abortion rights.
In January, the Legislature approved a law establishing a fundamental right to abortion, which cements protections outlined by a Minnesota Supreme Court ruling that was not altered by the federal court decision. And legislators also passed a measure that aims to shield women who travel to Minnesota for an abortion from criminal or civil penalties in states where the procedure is illegal.
But proposals to eliminate a set of regulations for abortion, most of them unenforceable but still on Minnesota’s books, appeared to be more politically tenuous for Democrats. The legislation never came up for a vote in the narrowly-divided state Senate, and it was unclear what had enough DFL support.
Most restrictions — already struck down by courts — were eliminated
One of those rules is called “informed consent” in state law, and it requires a provider to give a woman information on medical risks 24 hours ahead of an abortion. Ramsey County District Court Judge Thomas A. Gilligan last July found that information mandated under state law was confusing and misleading in a ruling that struck down most of Minnesota’s abortion restrictions.
Another defunct law expected to be repealed requires a physician to perform abortions and says abortions after the first trimester must be performed in a hospital.
Legislators plan to repeal another statute that outlaws abortion when a fetus is “potentially viable” unless the abortion is necessary to “preserve the life or health of the pregnant woman.” That was ruled unconstitutional by a federal court in the late 1970s, which found it violated Roe because it would ban most abortions after 20 weeks of gestation.
There has been some confusion around the law over the last year. After Roe fell, some abortion rights organizations and Gov. Tim Walz suggested the regulations are still in force, preventing most abortions after viability. DFL lawmakers and some abortion providers say the timelines are followed in practice by abortion providers, and state data shows abortions after 20 weeks are rare in Minnesota.
Nevertheless, legal experts on both sides of the abortion debate say what’s known as the viability standard is not currently enforceable.
Democratic lawmakers argued the viability standard should be repealed to clear up any uncertainty, and in part to prevent any chilling effect on abortions from providers who may be worried about the law when abortions later in pregnancy are often because of complications.
“Physicians are having to consult with lawyers before they’re able to offer appropriate medical care to their patients,” said Sen. Kelly Morrison, DFL-Deephaven, earlier this year. “That can further delay care, and that can further endanger people’s lives.”
Liebling said the Legislature would largely repeal the “Born Alive Infants Protection Act,” which was not challenged in court and is still in effect. That law says another doctor should be available at an abortion after the 20th week of pregnancy. And that doctor must take “all reasonable measures” to preserve the life and health of any “born alive infant that is the result of the abortion.”
Republicans wanted to keep restrictions on abortion, accusing the DFL of allowing third-trimester abortions that are sometimes performed in other states with permissive laws. And they said voters prefer at least some limits on abortion. Anti-abortion groups have sought to intervene in the Ramsey County case in hopes of appealing it to the state Supreme Court.
“The Democrats in the House of Representative believe that they have a mandate in place for the most extreme abortion policy in the world,” Rep. Anne Neu Brindley, R-North Branch, said in January
The Legislature will not repeal a defunct law requiring parental notice for minors seeking an abortion. Liebling said that could not pass the House, where the DFL can afford to lose only two votes on any legislation and one Democratic lawmaker opposes abortion access.
Data reporting on abortion
Another significant law being altered by DFL lawmakers now requires abortion providers to ask patients for extensive information on the procedure. That law was the one thing the Ramsey County judge upheld, though he struck down some related penalties. The Minnesota Department of Health has its own regulations asking for the collection of extra data, too.
Every year, the state compiles that information and publishes a report to the public. 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.
MDH documents say the information serves a public health purpose, and Judge Gilligan found the data could be medically relevant and doesn’t significantly impact abortion access. News organizations frequently use the data to explain statistics about the procedure in Minnesota. And both supporters of abortion rights and anti-abortion advocates have used the information to bolster their claims.
But Liebling has disagreed with the judge, saying many of those questions are intrusive and done to serve a political purpose for anti-abortion advocates. She and other Democrats had initially proposed eliminating all of the data collection, raising objections from transparency advocates and calling into question whether basic information like the total number of abortions in Minnesota each year would be available any longer.
“The reason it’s so objectionable is because you’re forcing the provider to have a conversation with the patient that’s not about anything medical,” she said Saturday.
Liebling said the Senate didn’t have the votes to completely get rid of the data collection and reporting requirements. Democrats have only a one-vote majority in that chamber. The new report will have some summary information like when in the gestation period a woman had an abortion, Liebling said.
“We compromised by reforming it and cutting out a lot of the questions,” Liebling said. “We’re not going to ask women why they’re having an abortion any longer.”