Minnesota law prohibits abortions outside of the womb after fetal viability. This applies only if a mother’s health or life is at risk. This is a common interpretation by some politicians and abortion rights advocates.
This is because the groups opposing abortion access limits didn’t sue the viability law over because they claimed it was already ineffective.
It is a mystery why so many people believe it exists. Why do so many abortion providers act as though it exists?
Laura Hermer, a Mitchell Hamline School of Law professor, said that it was a “misunderstanding”.
History of the viability standard
In 1973, the landmark Roe v. Wade decision by the U.S. Supreme Court outlined a right of abortion under the U.S. Constitution. However, it also stated that states could limit abortions in the third trimester. Minnesota legislators enacted restrictions the following year. They passed a law that states abortions after a foetus is “potentially viable” must be performed in a hospital and can only be performed when it is necessary to preserve the life and health of the pregnant women.
The law defines “viable” as being capable of living outside the womb without artificial aid. Importantly, however, the law states that a fetus born within the last half of a roughly 40-week gestational period is “potentially viable”.
That second phrase was challenged by the federal 8th Circuit Court of Appeals. Hodgson and Lawson decided that the definition of presumed viability starts at the 20th week. The court ruled that this was too early to limit abortions because 20 weeks fall within the second trimester. The 8th Circuit court ruled that second trimester restrictions are only permissible if they protect and preserve maternal health.
The 8th Circuit court ruled that Minnesota law wouldn’t have violated the Constitution if it included only the first section of its viability definition. This does not refer to the 20-week standard. The court ruled that the statute was invalid because it includes a definition for potential viability which is not consistent with Roe. According to the 8th Circuit, it was permissible for abortions after viability in a hospital to be performed.
What does mean today
Hermer stated that she believes the decision means that state law doesn’t limit abortions after viability. Teresa Collett, director of University of St. Thomas School of Law’s Prolife Center, Michael Drysdale (an attorney for Dorsey and Whitney) agree with Hermer. Drysdale has represented Planned Parenthood in Minnesota and South Dakota cases, as well as the abortion-rights non-profits Gender Justice and NARAL Pro-Choice America.
“We believe that those two provisions are inconstitutional,” Jess Braverman, Gender Justice, said. She was referring to the viability limit presumed to be at 20 weeks and the law requiring “assure” live births and the survival of a fetus after a post-viability abortion.
Braverman was one of the lawyers who challenged many restrictions on abortion under the banner UnRestrict Minnesota. “There was no reason to contest that (because) there is already an injunction span>
Braverman stated that the Legislature could pass a new bill to establish a viability standard. It didn’t.
In 1995, Doe v. Gomez established Minnesota’s right to abortion.
Collett has advocated for restrictions on abortion in all cases in the country. He noted that the Legislature passed a 2011 law restricting abortion after 20 week, but it was vetoed later by the then-Gov. Mark Dayton.
Melissa Hortman (House Speaker), a Brooklyn Park DFLer, stated that she believes Minnesota law doesn’t restrict abortions after viability. This would place Minnesota in line with New Mexico and Colorado, which don’t have any enforceable limits on late-term abortions.
However, it is possible that the 8th Circuit ruling could have been read differently, Hermer stated.
One could argue that the broad definition “potentially viable” of viable, which places a limit at approximately 24 weeks depending upon the circumstances of each pregnancy, might still be in law. This means that only a small portion of the statute found constitutional by the court would be preserved under this interpretation, making viability more dependent on medical interpretation.
Prominent officials still refer to the law as it was not repealed. In late June, Gov. Nichole Johnson, spokeswoman for Tim Walz, stated in a statement that the governor “supports” the timelines set forth by the current law .”
Johnson stated that the governor would sign the PRO Act. This legislation states that every person has a fundamental rights to choose whether to have an abortion .
A campaign spokesperson responded to further questions regarding abortion law on Friday by saying, “We still share the providers understanding that current law sets a threshold at viability.”
Keaon Dousti was a spokesperson for Attorney General Keith Ellison. He said that the AG could not comment because it has a long-standing policy of not providing interpretations of statutes which may be subject to litigation.” Ellison must defend state law’s constitutionality.
Providers adhere to viability
Hermer stated that most Minnesota abortion providers simply continue as if the laws were still in force.
Kelly Morrison, a Deephaven Democrat and a physician, stated that she believes Minnesota law on post-viability abortion is “pretty silent”. She said that it would be difficult for someone to find a provider who can perform an abortion later in pregnancy, unless there were “extreme circumstances” that could endanger a mother or if a fetus was not viable.
She said that she believes this is a rare occurrence in Minnesota.
This may not be a concern for state law. Morrison stated that she thinks it’s more a political consideration than any other and more a “community standard for practice” than adhering to a potentially obsolete law.
Another statute that affects late-term abortions is “ Born Alive Infant Protection Act. This law states that another doctor must be present at an abortion after the 20th weeks of pregnancy. The doctor must take all reasonable steps to protect the life and health “born alive” infants who are the result of an abortion. This law has not been challenged in court.
Minnesota data on abortions shows that abortions occur only after 24 weeks. Only one of the total 10,136 abortions in Minnesota last year occurred after 24 weeks, according to the state. Officials from Minnesota’s health department claim it occurred before the 30-week mark. According to the state, 159 abortions occurred between 21-24 weeks.
About 69 percent of all abortions occurred in 2021 at a gestational age less than nine weeks. Around 88 percent of abortions occurred within the first trimester.
Colorado reported that 60 of the 11,580 total abortions occurred within 24 weeks last year. These abortions were not reported in the official records. According to federal data 2019, less than 1% of abortions are performed at 21 weeks and later.
M Health Fairview and Allina, Hennepin Healthcare and HealthPartners did not respond to questions regarding their interpretations of state law or whether they have policies that regulate when doctors can perform abortions. They supported the decisions made by doctors and patients in statements.
Hennepin Healthcare has written a statement stating that they support their patients in making the best decisions for them.
Could this statute be revived?
Minnesota’s viability law was invalidated for not following Roe. This raises the question: What will happen now that Roe is overturned? Is Minnesota now able to enact a law that restricts abortion at viability, or even 20 weeks?
The state’s law was declared unconstitutional by the 8th Circuit ruling. Hermer stated that a legal action would be required to review the 8th Circuit ruling.
Hermer stated that any viability law against abortion access rights would have to be challenged under the Minnesota constitution. Doe.
Hermer spoke out about the viability law. The only way we will find out is if there is a legal challenge .”
Drysdale, the Dorsey and Whitney attorney, stated that the undoing a precedent “doesn’t just undo all that’s tied to it” but the Legislature would have to act to “bring them back to life.” Drysdale stated that the Hodgson decision would not be binding on lawmakers at that point. Collett stated that the AG could request courts to lift an order, but it is unlikely.
Braverman stated that there are many lawyers who disagree on what an injunction means. Some lawyers will say that law is still valid when a court declares it unenforceable. However, you must have the injunction lifted. Many lawyers will argue that law has been long forgotten at this point. It’s not a clear .”
Monday, Ramsey County District Judge Thomas Gilligan, Jr., invalidated most restrictions and regulations on abortion in the state. He sided largely with Braverman, Gender Justice, and said they were violating Minnesota Constitution.
The law was ruled unconstitutional because it required adults to wait 24 hours before they could have an abortion. It also required that doctors perform abortions, rather than other licensed medical professionals. Providers must give information to patients about the medical risks associated with abortion that the court found confusing and inaccurate.
UnRestrict didn’t challenge the viability law as it believed it had been struck down. Drysdale stated that it was “hard to see” how viability language would not violate the Minnesota Constitution under the legal interpretation of Doe.
It is unclear whether Ellison, who is representing the state against UnRestrict, will appeal the ruling of the district court. Although abortion access groups praised the decision as protecting access to a fundamental right, anti-abortion organizations and politicians said that it was too broad.
Collett stated that Doe Doe v. Gomez was interpreted in a broad way by the district court. The real question is whether the viability ban, if it were to be resurrected even partially, would be deemed unconstitutional by the Minnesota Supreme Court.
MinnPost staff author Peter Callaghan contributed