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Tuesday, June 28, 2022

If you think abortion rights are safe in Minnesota, think again – Twin Cities

The leaked draft opinion in the U.S. Supreme Court case of Dobbs v. Jackson’s Women’s Health Organization suggests the court will overturn Roe v. Wade and women’s constitutional right to terminate their pregnancies. The leaked opinion declares that it will be up to states and the political process to decide abortion rights.

Some here believe that if Roe is overturned, in Minnesota abortion rights are independently protected by law and thus would remain.

Think again.

What Roe v. Wade said

Roe v Wade is the 1973 Supreme Court opinion declaring that a constitutional right to privacy protects a woman’s right to terminate a pregnancy.

In reaching that conclusion, the Court built its decision off of prior decisions regarding privacy rights. Nowhere explicitly in the Constitution can one find a right to privacy. But, in cases such as Griswold v. Connecticut, the Court ruled that such a right is implicit in the Third, Fourth, Fifth, Ninth and Fourteenth Amendments.

The Roe decision expanded the right to privacy to include the right of women to terminate their pregnancies.

Yet that right was not absolute, and it could be regulated or limited. The Court said states could regulate the medical conditions under which abortions are performed in order to protect the health of the mother.

But the Court also rejected limits on abortion to protect the rights of the fetus. It did so because it ruled that an unborn entity was not a person under the Constitution.

Over the years those opposed to abortion have sought various ways to overturn abortion rights. They used protection of  maternal health as a  justification to limit where and when abortions could be performed. The Supreme Court upheld many of these regulations, but also struck down many.

For abortion rights advocates, they could always count on the U.S. Supreme Court coming to their defense. This was the case even in the 1991 Planned Parenthood v Casey decision, with which the Supreme Court reaffirmed its Roe decision.

What the draft opinion in Dobbs v. Jackson seems to say

The draft opinion in Dobbs v. Jackson’s Women’s Health Organization suggests that a nearly 50-year political effort by those who are opposed to abortion rights has paid off. The draft says Roe will be overturned.

This means it would now be up to the states and the political process to decide what abortion rights, if any, women will have. As currently worded in the draft, it will be up to states and possibly the national government to decide if abortion will be legal, and whether there will be any exceptions in cases of rape, incest, or the health of the mother.

The leaded opinion regarding Dobbs is a complete reversal of  Roe. But it is only a draft. It is still possible the Court will not formally overturn Roe. It is possible to leave Roe in place in theory but uphold more limits on abortion.

Minnesota abortion rights and the Gomez case

Were Roe overturned or abortion rights significantly limited, the focus would turn to the states. Some states are prepared to ban abortion. Other states have laws or rules in place to protect abortion rights.

In theory, Minnesota has such protections too. But the legal safeguards for abortion rights in the state are weaker than one might think.

There is no explicit right to abortion found in the Minnesota Constitution. The basis for abortion rights is found in a 1995 Minnesota Supreme Court decision, Women of the State of Minnesota v. Gomez. That case 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.

In this case the Minnesota Supreme Court ruled that providing public funds to pay for maternity costs but not abortions violated the rights of poor women. In reaching that conclusion the Court ruled that a right of privacy did exist implicitly under Article I, Sections 2, 7 and 10 of the Minnesota Constitution. This right to privacy included the right of a woman to choose to have an abortion.

Critical to the Minnesota Supreme Court reaching that decision was that the state attorney general at the time, Skip Humphrey, who was supposed to defend the law, had conceded that such a right exists. Effectively, the government refused to defend its abortion laws. That in part is why the Court ruled the way it did.

Thus, the right to privacy under Minnesota law protects the right of women to terminate pregnancy.

But the state Court never said it was an absolute or unlimited right. The Gomez case was decided by a very liberal Minnesota Supreme Court, which conceded at the time that its ruling was limited.

All of this is important  because the right to abortion in Minnesota under Gomez parallels the right to abortion under the U.S. Constitution as established in the Roe case. Both decisions protected abortion rights through rights to privacy created by the courts.

If Roe goes, so goes Gomez?

If the U.S. Supreme Court can overturn Roe, there is no reason to think the Minnesota Supreme Court cannot overturn Gomez.

Consider some possibilities:

Assume a future governor and state Legislature pass a law banning abortion. While at present the Minnesota Supreme Court may look pro-choice, it would not take much time over several elections to replace it with justices who oppose abortion. Several years ago in Iowa, for example, its Supreme Court ruled that its constitution protected the rights of same-sex couples to marry.  As a result, those who opposed to the decision successfully replaced several of the justices in elections.

Or think of a future Minnesota attorney general unwilling to defend abortion rights. This could change the outcome of a case, as it may well have in the Gomez case back in 1995. Or consider a possible future state constitutional amendment to ban or limit abortion. The point is that the Gomez decision may be a temporary firewall for abortion rights, but a concerted political movement by groups could easily destroy such a right.

Here are other possibilities: A future U.S> Congress and president could pass a federa; law making abortion illegal under and prosecute women or doctors in Minnesota who receive or perform abortions, regardless of what Minnesota law said.

It is possible that a future U.S. Supreme Court could declare a fetus a person with federal rights. If that were to happen the Minnesota Gomez decision could effectively be overturned at the federal level. This is so because state law would conflict with a Supreme Court decision, and the latter would prevail. Or maybe Minnesota passes such a law. This would force the Minnesota Supreme Court to decide how to resolve the rights of a mother versus her fetus.

The point of all these scenarios is that if abortion is not protected as a right at the federal level, it will be harder for the state to protect it. Thus, abortion rights advocates should not be so complacent in thinking that Minnesota is safe no matter what the Supreme Court does or what a final version of the Dobbs ruling is.

David Schultz is Distinguished University Professor at Hamline University in the departments of Political Science, Legal Studies and Environmental Studies.

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