As red states pass new abortion restrictions, Minnesota looks to shed them all

Progressives’ plan to eliminate abortion restrictions makes some DFL moderates anxious, even as the politics of abortion have shifted

By: - May 8, 2023 7:48 am

Abortion rights proponents and opponents demonstrate inside the Minnesota Capitol as the Senate debated the PRO Act on Jan. 27, 2023. Photo by A.J. Olmscheid/Senate Media Services.

Progressive Democrats, fresh off a surprising midterm election victory, had a plan this year to make Minnesota an abortion refuge of the Upper Midwest, writing abortion rights into law and removing all restrictions on the books.

They quickly succeeded in codifying the right to abortion and enacting a shield law to protect women who travel to Minnesota from out-of-state to have abortions.

But another, far-reaching bill that would repeal virtually all abortion restrictions could fail to get the necessary support of swing-district Democrats needed with a one-seat majority in the Senate.

The hold-outs could force the rest of the Democrats in the Legislature to make compromises on the party’s abortion agenda, something they have been uninterested in doing. Democrats have so far rejected every amendment proposed by Republicans, which they say would be a concession to the anti-abortion movement.

“Here’s the thing, of course you do not trust the anti-abortion movement. They have literally, successfully banned abortion in more than half the states,” said Sen. Erin Maye Quade, DFL-Apple Valley. “Our goals are fundamentally unalignable …  I don’t want to work with them on making abortion a little bit more banned. I don’t.”

Maye Quade said she believes the abortion restrictions — many of which have already been ruled unconstitutional by a judge last year — will pass. But there are signs that some Democrats fear the party is moving beyond what their voters are comfortable with.

Legislative leaders said they expected to bring the bill (SF70/HF91) repealing restrictions to the floor in February, but it only recently passed in the House as part of a larger health bill. The Senate version didn’t have the corresponding language.

And Gov. Tim Walz’s office declined to say if he supports all the repeals in the bill. A spokeswoman for Walz said only that he looks forward to signing the health  bill once the House and Senate pass whatever version they agree to.

If progressive Democrats successfully bring moderates to their side, it will likely prove as consequential to abortion access as the PRO Act, the law signed by Walz stating everyone has a fundamental right to reproductive health care.

The bill seeks to repeal over a dozen laws regulating abortion, along with archaic (and unenforceable) bans on sodomy, adultery, fornication and mailing “obscene materials” — the Minnesota version of the 19th century federal Comstock Act, which abortion opponents have resurrected in an effort to ban the mailing of abortion drugs.

Gone is the definition of “viable” for a fetus being able to live outside the womb, and with it the requirement that abortions after viability only be performed in order to preserve the health of the pregnant woman.

Gone is the requirement that abortions after the first trimester be performed in a hospital or abortion facility.

Gone is the requirement that both parents of minors be notified.

Gone is the requirement that the state Department of Health keep any data on abortions performed in the state.

Gone, too, are the requirements that women wait at least 24 hours before getting an abortion and that their doctors recite a list of medically dubious claims about the risks, including a connection to breast cancer.

Most of these requirements were struck down by a Ramsey County judge just days after the U.S. Supreme Court’s ruling overturning Roe vs. Wade in a case brought by Gender Justice, the nonprofit Maye Quade works for. The judge based his decision on 1995 Minnesota Supreme Court ruling that the state’s constitution guarantees the right to abortion.

Sen. Erin Maye Quade, DFL-Apple Valley, introduces a bill providing gender affirming health care protections. Photo by Senate Media Services.

That ruling — known as Doe v. Gomez — has become a bulwark against the rightward shift of the U.S. Supreme Court, and ensured Minnesota’s place as a haven for abortion rights, as its neighbors have moved to ban abortion.

Yet courts can be fickle. Advocates worry a future judge could reverse the Ramsey County judge’s decision — though efforts to appeal the decision have so far been unsuccessful — and a future state Supreme Court could overturn the ruling that Minnesotans have a constitutional right to abortion.

Abortion access advocates also worry providers would be scared to violate laws, even those ruled unconstitutional.

“It removes the Damocles of fear that would hang over providers’ heads,” Maye Quade said.

The result would be that abortion would have no more oversight than, say, an online prescription for erectile dysfunction or a tonsillectomy — treatments health researchers say carry more risk than most abortions.

If the package of repeals passes, Minnesota would join the half dozen most progressive states on abortion, including Oregon, California, Vermont and New York, according to Elizabeth Nash, who tracks state-level abortion policy for the Guttmacher Institute.

Like the PRO Act, the bill has drawn fierce opposition from Republicans.

“These bills are just completely far afield of where Minnesotans are. They’re just really out of touch,” said Rep. Anne Neu Brindley, R-North Branch, in an interview.

Yet abortion rights has shown itself to be a winning issue. Polls show support for abortion access has grown since the Dobbs decision. Voters in California, Michigan and Vermont passed state constitutional amendments protecting reproductive freedom, while voters in red states like Kansans and Kentucky rejected abortion bans.

In April, Wisconsin residents voted by an 11-point margin for a progressive state Supreme Court judge who publicly stated her support for abortion rights over a conservative opponent who seemed likely to uphold the state’s 1849 abortion ban.

Further attacks on abortion rights, like a federal judge’s ruling attempting to eliminate access to abortion pills, threaten to paint Republicans as extremists who want to ban abortion completely, keeping the issue alive for at least another election cycle.

The significance of the political earthquake set off by the Supreme Court’s Dobbs decision can’t be overstated: The package of repeals before Minnesota lawmakers would’ve been unthinkable the last time Democrats controlled the legislative and executive branches nine years ago.

This year is the first time there’s been a “pro-choice majority,” according to Democrats, and the repeal bill sailed through a number of committees in both chambers with the maximum 35 co-authors in the House and five co-authors in the Senate.

The repeals passed the House at the end of April with two notable changes: The bill doesn’t repeal the requirement that the parents of minors seeking abortions be notified unless waived by a judge.

And the bill doesn’t fully repeal the law requiring physicians to provide life-saving care to a baby that is born after an attempted abortion — an extremely rare occurrence. Instead, it requires medical providers to provide “care,” which could be end-of-life care for a baby whose life can’t be saved because of severe deformities or other maladies.

Republicans offered numerous amendments, including one that garnered support of two Democrats: Reps. Dan Wolgamott of St. Cloud and Dave Lislegard of Aurora supported an amendment that would have banned third-trimester abortions except in cases of rape, incest or serious complications and would have required abortion facilities to be licensed by the Department of Health, like hospitals.

None of the repeals on abortion regulations were included in the Senate’s large health and human services bill, which means members of both bodies will have to negotiate over whether or not to include them in the bill before sending it back to both chambers for approval and then the governor’s desk.

Senators in swing districts, just one of whom could tank the bill in the 34-33 upper chamber, have been tight-lipped about their positions.

Sen. Grant Hauschild, DFL-Hermantown, said he hadn’t looked at it enough yet to know if he supports it.

Sen. Robert Kupec, DFL-Moorhead, didn’t return a voicemail and email, and his assistant said he was unavailable when a Reformer reporter visited his office. He voted for the repeals when the bill was first heard in committee in January.

Sen. Aric Putnam, DFL-St. Cloud, said he’s not necessarily opposed to repealing many abortion restrictions but that the issue is “complicated.”

“I’m appreciating its complexity,” Putnam said. “Most Minnesotans favor access to the procedure. That’s why I voted for the PRO Act without reservation. But I think most Minnesotans also see it as a complicated issue and that circumstances matter.”

Repealing the viability standard 

The challenges of how to regulate abortion in post-Roe America are medical as well as political.

Proponents of the repeals say the state cannot effectively regulate complex medical decisions.

“I get nervous when the Legislature tries to legislate how to practice medicine because the Legislature is not made up of health care providers,” said Sen. Kelly Morrison, DFL-Deephaven, a co-author of the bill and an OB/GYN.

The bill’s repeal of restrictions after viability — that ambiguous point in gestation after which a fetus can survive outside the womb — goes against what polling suggests a majority of the public think is acceptable.

Seventy-one percent of Americans think abortion should be restricted somewhat — either mostly legal with some restrictions or mostly illegal with some exceptions. Nineteen percent think abortion should be legal in all cases with no exceptions, according to a pre-Dobbs 2022 poll from the Pew Research Center. In that poll, 61% of respondents said the gestational age of the fetus should matter in determining legality.

Republican gubernatorial candidate Scott Jensen, who was pummeled on the airwaves for saying he’d ban abortion, tried to paint Walz as the extremist, claiming Walz supported abortion up to the moment of birth with no restrictions.

Walz’s campaign rebutted the allegation and said he supported “maintaining the timelines outlined by current law.” By that, Walz meant keeping elective abortion legal up to viability.

Minnesota’s viability law — which states abortions after viability must be done in a hospital and be necessary to protect the health of the mother — exists in a legal gray area because of a 1976 federal court ruling that a provision of it was unconstitutional because it violated Roe v. Wade.

Gov. Tim Walz holds up a signed copy of the Protect Reproductive Options act during a ceremonial bill signing on Jan. 31, 2023 at the state Department of Revenue. Photo by Max Nesterak/Minnesota Reformer.

Even so, medical providers have adhered to it in practice. A Walz campaign spokesperson told MinnPost that the PRO Act would not affect the viability standard, and “we still share the (medical) providers’ understanding that current law sets the threshold at viability.”

When the PRO Act was passed, Republicans called Walz a liar for supporting a bill that guarantees every person the right to an abortion. Full stop. No exceptions.

But Republicans are also skittish about saying when they think abortion should be banned.

“That is a political question that folks have been trying to answer all over,” said Republican Minority Leader Mark Johnson of Grand Forks. “I think right now, I’m really grateful that the Dobbs case happened and this was pushed down to the states.”

Pressed on when he personally believes abortion should be legal in Minnesota, Johnson said, “That’s a political debate to find that sweet spot where Minnesotans are comfortable.”

Ask Democrats if they think people should be allowed to have elective abortions later in pregnancy, they usually answer a different question: would they?

“It literally doesn’t happen,” said Morrison, the senator and OB/GYN. “People aren’t going to walk in to ask for an abortion in a normally developing pregnancy late in pregnancy. Like that just doesn’t happen. And you’re never going to find (a medical provider) who would do that anyway.”

Of the 10,136 abortions recorded in Minnesota in 2021, just one was performed after 24 weeks of gestation — the approximate point of viability. (There were 118 abortions for which the gestational age was not reported.) In 2020, one abortion was reported after 24 weeks. In 2019, two.

These statistics would no longer be available if a state law is repealed under the bill. The law requires that health care providers collect a litany of data on each abortion. The reporting requirement was challenged in the recent lawsuit against abortion restrictions, but it was the one law that the judge did not rule unconstitutional. The bill’s authors argue that because abortion should be treated like all other health care, there’s no reason to single it out for more data collection.

Democrats say leaving a viability restriction in place — even one with broad exceptions like Minnesota has effectively had in place for decades — could deter physicians from providing abortions and delaying care.

They point to horror stories from states that have carved out exceptions for medical emergencies. Stories like Deborah Dorbert’s, who couldn’t find a physician in Florida to end a pregnancy doctors agreed was doomed.

Dorbert, whose story was reported by the Washington Post, found out at 23 weeks that the fetus inside her didn’t develop kidneys and therefore couldn’t produce vital amniotic fluid. There are no treatments for the condition — called Potter’s Syndrome — and many fetuses die before they are born.

Dorbert found traveling to a state with more permissive laws too daunting and so continued to carry a baby she knew was going to die soon after it was born, enduring emotional suffering and risking her own health.

Repealing regulations on who can perform abortions 

The bill would strip away all Minnesota laws governing who can perform an abortion and where — rules first enacted in the 1970s and declared unenforceable by the courts.

The law on the books says it’s a felony for anyone to perform an abortion except a physician (or physician in training) and require that an abortion after the first trimester be performed in a hospital or abortion facility. Minnesota also requires that abortion facilities be licensed — like hospitals — by the commissioner of health.

Ramsey County District Judge Thomas Gilligan’s ruling last year invalidated the law requiring doctors to perform abortions, allowing other advanced care providers like physician assistants, nurse practitioners, nurse midwives and clinical nurse practitioners to perform the procedure.

Testimony from doctors and nurses showed some of the oddities of restriction: Physician assistants and nurse practitioners can prescribe controlled substances, for instance, yet the law required a doctor to dispense abortion pills, which have been shown to be safer than Viagra and penicillin.

Clinical nurses and nurse midwives also help women carry pregnancies to term and deliver babies, which is far riskier than abortions.

Brindley, the North Branch Republican, noted Republicans brought an amendment to change “a person performing an abortion” to “a medical professional” and that was rejected.

Republicans say that means Democrats are opening up the procedure to non-medical professionals.

The bill’s authors hold that because abortion is health care, it must be performed by a licensed medical professional. They counter that state law doesn’t enumerate every individual medical procedure that must be performed by a physician or nurse.

What prevents someone without proper training from performing an abortion, Maye Quade says, is the same law that prevents non-medical professionals from providing heart transplants or leg amputations.

“It’s a crime to practice medicine without a license,” Maye Quade said.

The Ramsey County judge’s order struck down the requirement that abortions be performed in an abortion facility or a hospital after the first trimester, noting the law was not actively being enforced to begin with.

There are no licensed abortion facilities in Minnesota because there’s no licensure mechanism — the law requiring them to be licensed was enjoined in a 1977 federal court decision.

Clinics aren’t governed by the same rigorous standards that apply to hospitals, which must be licensed by state health authorities. Health clinics aren’t licensed, and the industry largely depends on self-regulation under the threat of lawsuits or disciplinary action.

There isn’t a government official who routinely comes by to check that all health clinics are sanitary and safe, like they do for restaurants, hair salons and apartment rentals. Many health care providers do their own internal audits. Planned Parenthood, for example, inspects its affiliate clinics as a requirement to carry the Planned Parenthood name.

Republicans say the state should require abortions after the first trimester be performed in hospitals, but experts told the Ramsey County judge that there’s little proven health benefits of a hospital over an outpatient clinic, which in some studies has been shown to have better outcomes.

Advocates look to pass a constitutional amendment

Abortion rights advocates — with the enthusiastic support of DFL operatives — are taking no chances that their successes be reversed: Minnesota voters can expect to face a decision about a constitutional amendment to protect reproductive rights at some point in the near future.

“That would be an exceptionally wise move if they are really interested in protecting reproductive freedom in Minnesota,” said Laura Hermer, an abortion law expert and professor at Mitchell Hamline School of Law.

It’s the holy grail for abortion rights advocates, who have passed them in California, Vermont and Michigan.

Unlike the PRO Act, a constitutional amendment couldn’t be reversed by a Republican trifecta or undone by a conservative Supreme Court. The 1995 state Supreme Court ruling that Minnesota’s constitution guarantees the right to abortion is based on people’s right to privacy — not reproductive health care.

The political calculus Democrats have to make is not whether to put it on the ballot, but when it will be most advantageous to them. With U.S. Sen. Amy Klobuchar on the ballot in 2024, Democrats may feel they don’t need the extra boost from an abortion amendment until 2026.

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Max Nesterak
Max Nesterak

Max Nesterak is the deputy editor of the Reformer and reports on labor and housing. Previously, he was an associate producer for Minnesota Public Radio after a stint at NPR. He also co-founded the Behavioral Scientist and was a Fulbright Scholar to Berlin, Germany.