With or without Roe, pro-life efforts in Minnesota face serious challenges

When pro-life advocates take part in this year’s March for Life in St. Paul Jan. 22, some may wonder if it’ll be their last. With the confirmation of Justice Amy Coney Barrett to the U.S. Supreme Court and a new 6-3 conservative majority on the bench, both abortion rights activists and pro-life advocates agree the 1973 Roe v. Wade precedent that established a federally protected right to abortion has never been more vulnerable.

But in Minnesota, even the most optimistic of pro-life advocates aren’t expecting potential challenges to Roe to alter local abortion law, at least not any time soon. Not only are most experts doubtful the Supreme Court will overturn Roe in one fell swoop — a gradual chipping away, if anything, seems more likely — but Minnesota law already includes protections for abortion access beyond federal precedent. A 1995 ruling by the Minnesota Supreme Court, Doe v. Gomez, established not only a right to procure an abortion at the state level, but also obligates the state to pay for the procedure if a woman who elects to have an abortion cannot afford it.

The precedent makes abortion access uniquely entrenched in Minnesota law, and its demise anything but inevitable.

“Roe could be overturned tomorrow, and it would have virtually no impact in Minnesota,” Teresa Collett, a professor at the University of St. Thomas School of Law, told The Catholic Spirit.

In fact, if anything, pro-life successes at the federal level appear to have contributed to pushes for expanded access to abortion in places like Minnesota. Recognizing that Roe could soon fall, national abortion rights groups have increasingly turned their attention — including their funding, legal team and public relations resources — to state capitols and court systems across the country.

According to the Guttmacher Institute, the research arm of abortion provider Planned Parenthood, 36 new abortion protections were enacted in the states in 2019. The figure is a dramatic increase from an annual average of only three such enactments over the preceding nine years. States such as Illinois and New York have passed new laws that established abortion as a “fundamental right” in their jurisdiction, removing several regulations of the practice and guaranteeing access even if Roe were taken off the books.

In Minnesota, activists supporting legal abortion haven’t hidden their intention to change state laws, eliminate regulations and expand access. UnRestrict Minnesota, a public awareness campaign aimed at removing any and all state laws regulating abortion, was launched in 2019, replete with billboards on major roadways and a slick website providing heavily biased interpretations of Minnesota abortion law. The website also invites visitors to take a pledge committing “to repealing Minnesota’s abortion restrictions.” Branded as a “community-supported” collective campaign with 25 listed partners, UnRestrict Minnesota appears to be an initiative of advocacy group Gender Justice, which backs what it calls reproductive freedom, LGBTQ liberation and other issues, as the two share a University Avenue address in St. Paul.

And the campaign’s efforts aren’t only educational. On May 29, 2019, Gender Justice and UnRestrict Minnesota partner organization The Lawyering Project, a New York-based advocacy group for legal abortion, filed a lawsuit in Ramsey County District Court challenging 13 abortion regulations passed by the Minnesota Legislature, both before and since the Doe v. Gomez ruling. Parental notification requirements for minors, medical licensure standards for abortion-performing physicians, 24-hour waiting periods and demographic reporting requirements — essentially every statute on the books passed by elected officials to promote the health of the mother and provide informed consent — are all targeted by the lawsuit. The litigation, which is currently under consideration by Judge Thomas Gilligan Jr., contends that these types of regulations amount to government influence in a woman’s decision to abort inconsistent with Minnesota’s state constitution.

A complicating aspect of the case is that responsibility for defending these laws ultimately falls to Attorney General Keith Ellison. Although Ellison has publicly committed to “defend the laws of the state of Minnesota” regardless of his own opinions, his long history of support for abortion rights — including the submission of briefs in favor of striking down similar laws in other states — concerns pro-life advocates.

“He hasn’t raised the defenses that he should’ve,” contends Erick Kaardal, a local attorney who filed an intervention in the case on behalf of Pro-Life Action Ministries. Kaardal’s work on the case is sponsored by the Thomas More Society, a national public interest law firm that focuses on life, family and religious freedom issues.

On Oct. 30, 2019, attorneys representing the state moved to dismiss the Ramsey County case, on the grounds that the plaintiffs — two unnamed abortion providers, a nonprofit operating an abortion assistance fund and a local religious group in favor of abortion rights — failed to establish that the regulations in question clearly harmed them, and that the size and scope of the lawsuit denied them legitimate standing. Kaardal’s request for dismissal emphasized that, unless sovereign immunity has been waived, the state cannot be sued for allegedly violating its own constitution.

However, Gilligan, the judge, denied Pro-Life Action Ministries’ intervention on Jan. 26, 2020. Then, on June 25, he denied the state’s request to dismiss the case, moving it forward in the process. Shortly after, the Minnesota State Senate attempted to hire outside counsel, including Collett, to intervene in the case, on the basis that Ellison’s office was ill-suited to provide an adequate defense for the state’s abortion regulations. That measure, too, has proved fruitless.

Now, Kardaal expects a ruling on the case sometime in 2021. He describes the possible outcome of the court striking all 13 regulations from the books as a “disaster” that would compromise women’s health and harm the unborn, and notes that given current leadership in the state’s executive branch, an appeal would be unlikely.

The Ramsey County case represents the most obvious threat to abortion restrictions in Minnesota, but activists are pursuing other avenues of attack, as well. Last year, legislation proposing that abortion rights be codified into state law came up in the Minnesota State House, and could be revisited this session, which began Jan. 5. Placing abortion rights in state law would provide another layer of protection should Doe v. Gomez be overturned. There also have been recent efforts to defund or at least alter the makeup of the Positive Alternative Grants Program, an initiative established by the Legislature in 2005 that issues $3.5 million in grants to Minnesota nonprofits that provide services to help women choose alternatives to abortion, such as housing assistance and childcare.

Collett says Minnesota might not have to worry about coordinated efforts to place abortion rights supporters in the state court system — such as what happened in Kansas, where the newly composed state supreme court recently wiped all abortion regulations off the books on the grounds that they violated a previously undisclosed right to privacy in Kansas’ constitution — but not for good reasons.

“It strikes me that at this point in time, it would be hard (for the Minnesota Supreme Court) to become more abortion friendly,” she said.

Pro-life advocates can point to opportunities to advance the cause in the state’s legal system, though they’re less numerous and clear-cut than the challenges faced.

Though local courts might be more hostile to pro-life laws, Minnesota Citizens Concerned for Life Executive Director Scott Fishbach describes the confirmation of Barrett to the Supreme Court as a “huge accomplishment,” which could pave the way for local gains in the future, such as a legal challenge to Doe v. Gomez. Collett notes that a U.S. Supreme Court more receptive of laws regulating abortion could open the door for new abortion regulations not currently on Minnesota’s books, such as bans on discriminatory abortions or requirements that abortions-by-pill be preceded by a medical examination — though she doubts the political climate in Minnesota is currently conducive to such measures. Another possibility, she says, is that municipalities could attempt to issue bans on practices such as local medical practices participating in abortion services.

Jason Adkins, executive director of the Minnesota Catholic Conference, is less optimistic, and says a constitutional amendment may ultimately be the only reliable way to ensure restrictions protecting unborn human life are maintained.

“In other words, the political outlook for limiting abortion access is bleak,” he said.

While not suggesting that the pro-life movement abandon its legal efforts, Adkins and others underscored the importance of continuing to support pregnancy resource centers and other pro-life ministries. He also emphasized the need for continued focus on winning hearts and minds by reframing the abortion conversation, avoiding language that pits the rights of unborn children against the rights of women, and instead emphasizing “prenatal justice.”

Beyond attempts to limit access to abortion, he also says pro-lifers must focus on efforts to reduce the demand for abortion in their legislative advocacy. One example was a package of “First 1000 Days of Life” bills partially passed in 2020, which underscored “the humanity of the unborn and serve(d) as a bridge builder between pro-lifers and moderate pro-choice people” by promoting child development and maternal well-being from conception to age 2.

“In general, the pro-life community needs fresh leadership and creative thinking to get it out of the partisan framework in which it operates, and which focuses on federal elections that never seem to deliver the promised rewards,” Adkins said.

And, at least for the foreseeable future, the movement also will need to continue marching for life, this year and beyond.