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Minnesota has abortion protections post-Roe. Do opponents have a path to more restrictions?

The top priority for Minnesota anti-abortion groups following the overturning of Roe v. Wade is winning elections in November. But even with the state Legislature and governor's office, passing sweeping bans could be a far reach.

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Students crowd the steps of the State Capitol while attending the Minnesota Citizens Concerned for Life annual March for Life rally in St. Paul on Wednesday, Jan. 22, 2020, the 47th anniversary of the Supreme Court's 1973 Roe v. Wade decision legalizing abortion.
Scott Takushi / TNS
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ST. PAUL — Abortion rights are still protected in Minnesota following the U.S. Supreme Court’s overturning of Roe v. Wade, but the fight over the issue is far from over in the state.

While a state Supreme Court decision continues to protect abortion rights in Minnesota, abortion opponents say their immediate goal following the end of federal abortion protections is to gain a greater foothold in state government.

“Absolutely the most important thing is that we want to have a pro-life majority in both houses of the Legislature and also we want a pro-life governor,” said Moses Bratrud, Communications Director for Minnesota Family Council, a group that opposes abortion. “The election is going to be definitely our first test of what type of post-Roe Minnesota our fellow Minnesotans want to see.”

Should Republican majorities be elected in both the Senate and the House of Representatives this fall, it is likely the Legislature will pass greater abortion restrictions. Presently, the GOP controls the Senate and Democrats control the House and governor’s office, meaning abortion restrictions will not gain any traction in the state unless that control shifts to the GOP.

Minnesota Supreme Court

Even if Minnesota Republicans keep control of the Senate, win a majority in the House of Representatives, and take the governor’s office, they would not be able to ban abortion outright, as it is constitutionally protected by the 1995 state Supreme Court decision Doe v. Gomez. In that case, the high court ruled the state constitution did not just protect abortion rights, but state funding for abortions as well.

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Anti-abortion group Minnesota Citizens Concerned for Life has backed bills that would restrict abortion funding which the Legislature passed in 2011 and 2017, and were vetoed by then-Gov. Mark Dayton. If similar abortion funding ban bills were signed into law by a future governor, it could bring the Doe issue back before the state Supreme Court.

Iowa's Supreme Court this month overturned a 2018 case protecting the right to an abortion in that state, but it would likely be a long road for anti-abortion groups to overturn similar precedent in Minnesota. Minnesota’s seven-member supreme court is currently made up of five appointees from Democratic-Farmer-Labor governors Dayton and Tim Walz, and two appointed by Republican Gov. Tim Pawlenty.

Paul Stark, spokesman for Minnesota Citizens Concerned for Life, said the court’s makeup would be key in opening the path to establishing stricter laws on abortion.

“You would need to have the right justices on the court, enough justices that would be willing to take that case and then overrule their previous ruling,” he said. “(It) points back to the importance of who's who the governor is, and the stakes of the governor's race.”

Still, even if an anti-abortion candidate were elected governor, changing the composition of the court would not be an immediate possibility. Minnesota judges are elected to six-year terms, though the governor is responsible for appointing judges to vacant seats. All members of the state Supreme Court are appointees — some of whom have been reelected.

Justices appointed by the governor can seek election after their term expires and Minnesota’s judicial races are nonpartisan. The two DFL-governor appointed justices whose terms are set to end in January 2023 are up for election this year and do not have challengers. One Republican-appointed justice, Barry Anderson, will step down in 2024 as judges must retire at age 70 in Minnesota. The GOP-appointed Chief Justice Lorie Skjerven Gildea and two DFL-governor-appointed justices' terms end in 2025, and they can run for their seats.

Abortion in the Legislature

What types of bills could Republicans pass and sign into law if they gained control of the Legislature and governor’s office?

Minnesota Concerned Citizens for Life backs legislation that would ban abortion pill delivery by mail, create new licensing and inspection requirements for facilities that provide abortions, and ban abortions after 20 weeks. The group has had Republican lawmakers sponsor bills in past legislative sessions.

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Stricter abortion bans would face more resistance in the courts, but an anti-abortion majority in the Minnesota Legislature could also pass an act to change the state Constitution to ban abortion. That would send the question to voters in a general election, and if successful would circumvent the current abortion protections offered by state Supreme Court precedent. The Legislature placed a same-sex marriage ban amendment on the ballot in 2012, which failed.

Constitutional amendment processes vary by state. In Michigan, groups are gathering signatures to place an amendment protecting abortion rights on the ballot this year.

Efforts to protect abortion rights

Gov. Walz and other DFL candidates have said they will protect the legal right to abortion in Minnesota. Walz on Saturday, June 25, issued an executive order banning Minnesota agencies from assisting other states in civil or criminal action against anyone seeking legal abortions in Minnesota. Attorney General Keith Ellison is one of 22 state attorneys general who has vowed to protect individuals from out-of-state seeking abortions from prosecution by states where abortion is illegal. 

Walz and Lt. Gov. Peggy Flanagan’s reelection campaign has described itself as the “last line of defense for abortion rights in Minnesota.” Republican-endorsed challenger Scott Jensen and running mate Matt Birk have said they oppose abortion in nearly all cases, including rape and incest. Republican attorney general candidates Jim Schultz and Doug Wardlow are also opponents of abortion.

Megan Peterson, executive director of Gender Justice, a Minnesota gender equity legal advocacy organization, said abortion-rights advocates had anticipated the end of Roe and have already launched an effort to further expand access to abortion in Minnesota.

“It's a whole new, wild world we're living in now. And we're going to have to kind of see how that plays out," she said. "But it's important that we are proactive and in setting up whatever protections are possible.“

In 2019 Gender Justice launched a lawsuit to end the state’s 24-hour waiting period for abortions and the requirement for both parents of a minor to be informed of an abortion. Beyond that, they hope to protect abortion in Minnesota from out-of-state legal action and ensure affordable and equitable access to the procedure.

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