Last month, in Dobbs and Jackson Women’s Health Organization , the U.S. Supreme Court revoked the federal right of an abortion and gave states the power to decide whether or not to allow it.
Some states attempted to restrict abortion prior to and following the ruling. Minnesota, however, has taken the opposite path with Doe v. Minnesota’s July 11th state district court decision. This ruling removed many restrictions to abortion in Minnesota.
The Minnesota Attorney General Keith Ellison stated that he would not appeal the decision of the state district court on Thursday. He said it was likely to fail because it would have been too costly.
“The people in Minnesota must know the law in Minnesota regarding abortion care.” He said in an email to the press.
So. What is the law in Minnesota regarding abortion now, after Dobbs and Doe?
A state Constitutional Right
Dobbs was the Supreme Court’s ruling that the U.S. Constitution doesn’t guarantee the right to abortion. This overturned 1973’s Roe V. Wade. It changed the abortion landscape in certain U.S. States overnight, but not in Minnesota.
This is partly due to Doe v. Gomez, a 1995 Minnesota Supreme Court decision that held that the constitution of the state protects abortion. Low-income women receiving medical assistance were also granted access to public assistance for abortions by the Gomez ruling.
“The Constitution’s right to privacy protects more than the right to abortion. It also protects the woman’s decision to have an abortion. Any legislation that interferes with this decision-making process violates this fundamental right,” Gomez reads.
“(That’s) getting at a notion that it’s more than ‘is abortion illegalized or not?’ It’s also about having access to abortion,” Jill Hasday, University of Minnesota Law School professor, said about the Gomez decision.
In Doe v. State of Minnesota a Ramsey County judge used the argument of accessibility to declare almost all of Minnesota’s abortion restrictions unconstitutional. This included a waiting period of 24 hours, an informed consent script that required specific information to be given to patients, the requirement that minors notify their parents or obtain a waiver from the court before they get an abortion, a rule that only doctors can perform abortions and that all other medical professionals must be able to do so.
Laws in the books
Although most of Minnesota’s abortion laws have been repealed by a state district court ruling, some laws still apply to the procedure.
One law that was challenged by the judge’s decision was left in place. It is a reporting requirement. This requires abortion providers to report to the state information, including demographic information about individuals seeking abortions. The Legislature is required to receive an annual report from the state.
Jess Braverman is the legal director of Gender Justice. She was also one of the UnRestrict Minnesota lawyers who represented the plaintiffs who sued to remove the Doe restrictions.
State law also requires that fetal tissue from an abortion must be buried or cremated after “there are cartilaginous structure, fetal orskeletal parts”. This requirement was also challenged by the Doeplaintiffs. Braverman stated that the First Unitarian Society challenged the requirement not only for privacy reasons, but also because it equates a fetus and personhood. This is contrary to their religious beliefs.
Braverman stated that there was confusion over whether plaintiffs had dismissed their fetal tissue claim in order to make the Doe law constitutional. The judge of the state district court did not rule on this issue. She stated that she expected this to be resolved soon.
Another law governing abortion that remains in place is the Born Alive Infant Protection Act. This requires that an additional doctor, other than the one performing abortion, be present in cases beyond 20 weeks. They must “take all reasonable precautions consistent with good medical practice”, including “to preserve any infant born alive as a result of the abortion.”
Although an abortion ban following a viability is already in state law, and is often cited on abortion information websites. However, it seems to be more of an example of good practice than a law that can be enforced. MinnPost was told earlier this month by experts that it wouldn’t be illegal for an abortion provider in Minnesota to perform an abortion if a viable fetus has been born. This is because MinnPost has a 1976 court order which makes the viability ban non-enforceable. They said that it would be difficult to find a provider willing to perform the procedure unless the woman’s life was at risk or the fetus has abnormalities not compatible with life.
Laws could be changed
Following Doe span style=”font weight: 400 ;”>, Minnesota is among the few states that have expanded abortion access, according to Emily Bisek, spokesperson for Planned Parenthood North Central States.
The Center for Reproductive Rights, which advocates for abortion access and lists Minnesota among the 10 states that have expanded access to reproductive rights, has listed Minnesota as one of those with expanded access. Eleven states are designated as “protected” and the rest are called “hostile span>
Abortion has been a major issue in the November election, following the decisions of federal and state courts.
Minnesota’s governor and all 201 legislators will be up for reelection in November. Gomez, who is still in place to protect the right to abortion, has been removed. However, the Legislature can make laws that regulate the procedure. The governor can sign them or veto them.
span style=”font weight: 400 The election will shape what is possible moving forward, whether we are able to have even the most common-sense types of abortion policies,” stated Paul Stark, spokesperson for Minnesota Citizens Concerned For Life. He said Dobbs was a significant victory in removing federal restrictions on abortions in states. However, the Minnesota district court ruling creates problems at the state level.
He stated that they will continue to pursue pro-life legislation, including parental notification, a ban on abortion after a pregnancy has ended, and the requirement for medication abortions to take place in person.
What types of legislation can pass court muster depends partly on who is on the bench. Another thing that could change is the time frame. Professor Hasday from the University of Minnesota said that she believes that Minnesota’s current Constitutional law is hostile to any restrictions on abortion.
Hasday stated, “I believe the district court in Doe brought out more clearly than the Supreme Court in Gomez… that the right of privacy isn’t just about ‘does he have a formal right?’ but also about your ability access abortion.”