Commentary

Minnesota must prepare for its role in a post-Roe world — Opinion

September 17, 2021 6:00 am

Protesters at the Supreme Court in March 2020, when the justices were hearing arguments in June Medical Services LLC v. Russo. Robin Bravender/States Newsroom.

Earlier this month, the U.S. Supreme Court declined to enforce Roe v. Wade and allowed a Texas abortion ban to go into effect. SB 8 is a Texas law that deputizes individuals and anti-abortion extremists to enforce the state’s six-week abortion ban. Right now, any individual in the state of Texas can sue anyone who helps another person obtain an abortion — even by counseling them or providing a ride to a clinic. If the plaintiff wins their lawsuit, the person they sued will be forced to pay them $10,000, at minimum.

With their refusal to intervene, the Supreme Court has sent a clear message: We cannot rely on them to protect our rights, including the Constitutional right to abortion. Our focus now needs to be on protecting — and expanding — the right to abortion care in Minnesota.

Let’s start by making one thing clear: SB 8 is blatantly unconstitutional. The government cannot punish people for exercising their constitutional rights, either by prosecuting them directly or by offering bounties to encourage harassment by private parties through the courts.

Texas SB 8 is alarming because its unique enforcement mechanism takes enforcement out of the hands of state officials and assigns it to private anti-abortion extremists — a move designed to help the law escape judicial review. Because of the way the law is written, someone who is harmed by SB 8 may have no one they can sue to stop it from taking effect. Even if a court did prohibit one party from enforcing the law, that wouldn’t prevent any other individual in Texas from bringing a new lawsuit in their place. This is all by design, and intended to make it harder for courts to stop the enforcement of this brazen and unconstitutional law.

The Court didn’t have to endorse this transparent, bad-faith trick, but they did. And their refusal to intervene is allowing state governments to erode the rule of law and violate our rights without accountability. As Justice Sonia Sotomayor said in her scathing dissent: “[t]aken together, [SB 8] is a breathtaking act of defiance — of the Constitution, of this Court’s precedents, and of the rights of women seeking abortions throughout Texas.”

This is an emergency. The reach of this tragedy extends far beyond the state of Texas, and the Supreme Court’s failure to act creates a precedent that threatens every constitutional protection we have.

Not only have more states promised to curb abortion rights using the SB 8 model, this legal regime will likely be replicated to frustrate other hard-fought rights. Under this precedent, a state might deputize individuals to sue anyone who helps a same-sex couple marry, or anyone who helps transgender and non-binary people seek hormore replacement therapy or surgery.

Here in Minnesota, our state constitution protects our right to have, and decide to have, an abortion without the government interfering. But that doesn’t mean that our work is done. Now that the Supreme Court has refused to protect our right to abortion, Minnesota could soon become the only state in the Upper Midwest where people can safely and legally access abortion care. The sad truth is, while abortion is protected in Minnesota, access remains too restricted to accommodate everyone who may come to our state seeking care.

For decades, anti-abortion lawmakers in our state have been quietly passing laws that restrict abortion access, intimidate providers and patients, and increase costs. Since 1995, legislators have introduced over 400 bills that limit access to abortion. Many of them have passed into law with little input from the public.

That’s why, in 2019, Gender Justice filed a lawsuit, Doe v. Minnesota, challenging many of these restrictions. Our clients Our Justice, the First Unitarian Society, and two reproductive health care providers argue that Minnesota’s abortion restrictions violate the state constitution by placing medically irrelevant restrictions on abortion that disproportionately harm low-income people, people of color, immigrants, and people who lack health insurance.

The stakes of our work to unrestrict Minnesota have never been higher. If we remain on the defensive, we are going to lose. We have to get more aggressive in our fight not only to protect abortion access in Minnesota — but expand it.

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Megan Peterson
Megan Peterson

Megan J. Peterson, executive director of Gender Justice, joined the organization in 2016, bringing many years of experience in progressive social justice causes, in particular reproductive rights.

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Jess Braverman
Jess Braverman

Jess Braverman is the legal director at Gender Justice. Jess came to Gender Justice from the Hennepin County Public Defender’s Office, and prior to that they worked with the Legal Aid Society’s Juvenile Rights Project in Brooklyn, N.Y. She is a graduate of NYU Law School, where they were an Arthur Garfield Hays Civil Liberties Fellow.

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