Protecting Minnesota reproductive rights: The why, how, and what

November 29, 2022 6:00 am

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The U.S. Supreme Court’s Dobbs v. Jackson Women’s Health Organization overturned Roe v Wade and the U.S. constitutional right to abortion. The case threw it back to the states and the political process to determine if and when women have abortion rights. Now that the 2022 elections are over and the Minnesota DFL has the trifecta control of the state legislature and the governorship, there is an opportunity to act to protect reproductive rights. The questions are what to do and what to protect?

The why and how

Option one is do nothing. Specifically, the Minnesota Supreme Court in Women of the State of Minn. by Doe v. Gomez ruled that the Minnesota Constitution protects the right of women to terminate a pregnancy. That decision was cited by a Ramsey County District Court judge earlier this year when he invalidated many Minnesota restrictions on abortions. For some these two decisions are sufficient to protect abortion rights.

However, Doe v. Gomez could be overturned by a future Minnesota Supreme Court much like Roe was overturned by the U.S. Supreme Court in Dobbs.

Gomez involved a state law that restricted the use of public funds for abortion. But the law allowed public funds to be used for childbirth-related medical services. The Court ruled that right of privacy existed in Article I, Sections 2, 7 and 10 of the Minnesota Constitution and it included the right of a woman to choose to have an abortion.

Gomez didn’t determine the scope of abortion rights, and it was based on the Roe decision assuring people the right to an abortion. Therefore, doing nothing is not a sound option if one wishes to protect abortion rights in Minnesota.

Option two is statutory. Specifically, Democratic lawmakers with majority control could simply codify abortion rights. Assuming there is enough votes by the DFL with their narrow majorities, that is a quick expedient.

Yet the problem here is that a future legislature and governor could simply repeal the law. Additionally, such a future anti-abortion coalition could pass other laws to set up a challenge to Gomez that could lead to a future Minnesota Supreme Court overturning it. What these may seem like remote possibilities, they are not impossible.

Option three is constitutional. A majority vote by both chambers of the Minnesota Legislature could send a constitutional amendment to the voters perhaps as early as 2024.  The advantage with this is that if adopted it would place the protection of abortion rights in the constitution and insulate it from future legislative and judicial action. Moreover, given that polls suggest a significant majority of Minnesotans support some form of abortion rights, it may have the sufficient votes to be adopted by the voters. For a constitutional amendment to pass, it would need a majority of all Minnesota voters in 2024 to support. It is difficult to pass amendments in Minnesota but once adopted, hard to repeal.

Additionally, by sending it to the voters it would be a potential mobilizing tool for Democrats in a critical presidential election year. It is a parallel strategy regarding what Republicans tried to do in 2012 when they miscalculated and thought a constitutional amendment to ban same-sex marriages would help them that year. It failed and it produced the last Minnesota DFL trifecta.

The downside of this strategy is that it is difficult to pass constitutional amendments in Minnesota and if it fails, what then? Yet in the 2022 elections, voters in California, Michigan, and Vermont amended their constitutions to protect abortion rights. Perhaps the constitutional route is the most secure, but risky.

What to protect

Roe originally said that women have a fundamental right to terminate a pregnancy at any time. In the first trimester the government could not ban it at all and even later in a pregnancy it could only regulate it to protect a woman’s health. In subsequent cases, the Supreme Court ruled that later term abortions could be banned and that other regulations were permitted so long as they did not place an undue burden on the right to an abortion. These decisions led to many restrictions on abortion.

While there is broad support for abortion rights, only a fraction of Americans believe there should be no restrictions on terminating a pregnancy. Legislation or a constitutional amendment that stated that would be unlikely to pass, and many legislators who were narrowly elected in moderate swing districts might be unwilling to support it.

Additionally, a general or vague amendment regarding abortion rights runs the risk of a future Minnesota Supreme Court interpreting it in way that waters down the scope of abortion rights.

Such a narrow amendment also would miss important ancillary rights associated with abortion.

Any effort to codify abortion rights should take a cue from California, Michigan and Vermont as well as proposed — but stalled — federal legislation.

The focus should be on reproductive rights, including contraceptive access and use. It should also specify the scope of what rights are protected and under what conditions they can be regulated by the state.

A protected right needs to guard against future legislation that might allow medical and pharmaceutical personnel to invoke conscience and refuse to provide services. Any amendment or legislation must allow citizens to take legal action to enforce their rights and not require legislative action. Finally, to ensure equitable access, it needs to address access and protection of reproductive rights for people who cannot afford reproductive health care.

Securing reproductive rights at the state level to counteract Dobbs is essential. The question is what to protect and how. This is the task that needs to be decided by Minnesota in 2023.

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David Schultz
David Schultz

David Schultz is a political science professor at Hamline University and a visiting professor at the University of Minnesota School of Law. He is a national expert on election law, professional ethics and state constitutional law.