UST law prof: Roe v. Wade’s overturn would have little legal impact in MN

As the U.S. Supreme Court prepares a decision following its Dec. 1 hearing of Dobbs v. Jackson Women’s Health Organization, many pro-life advocates and court observers think it could mean the overturn of Roe v. Wade, the Supreme Court’s 1973 ruling that legalized abortion nationwide.

With Dobbs, the court is examining a 2018 Mississippi law that banned abortions after the first 15 weeks of pregnancy, which is being challenged by the state’s only abortion facility, the Jackson Women’s Health Organization. The court is examining the question of “whether all pre-viability prohibitions on elective abortions are unconstitutional.” The ruling is expected at the end of the court’s term this spring.

Q) From your perspective, is the Supreme Court truly in a position where Roe v. Wade could be overturned?

A) Yes. Roe is purely a judicial creation — it has no roots in the language of the Constitution, American history or our legal traditions. As such, what the Court created, the Court can reject.

No doubt a majority, maybe even all, of the Justices hate having to deal with abortion cases. For some, like Justice Kavanaugh, this means the Court should admit the Constitution says nothing about abortion, overrule Roe, and send the issue back for the people to decide through normal political means. As he noted during oral argument, even if Roe is overruled, “states still could or — and presumably would — continue to freely allow abortion.”

For others like Justices Kagan and Breyer, Roe should only be overruled if other legal protections for abortion exist. Thus, it is conceivable that they would support overturning Roe if Congress puts statutory protections around abortion, like the deceptively named “Women’s Health Protection Act of 2021,” H.R. 3755.

Q) There are observers arguing that if the Supreme Court overturns Roe v. Wade, it would be seen as a political decision, undermining the rule of law and the court’s legitimacy. What is your perspective on this argument?

A) Roe v. Wade was a political decision when made, and it remains a deeply contested political decision today, both outside and within the Court. The case of Roe v. Wade was originally accepted by the Court to decide a narrow procedural issue. It was only through a series of historical accidents and the determination of Justices (William) Douglas and (William) Brennan that a majority of justices were persuaded to transform the case into one focused on the constitutionality of abortion. Whether the Court overrules or upholds Roe v. Wade, large numbers of Americans will see the Court as issuing a political decision.

Q) If Roe were overturned, where would Minnesota stand on the legality of abortion?

A) Overturning Roe v. Wade would have almost no impact on Minnesota abortion practice. In 1995 in Doe v. Gomez, the Minnesota Supreme Court created a state right to abortion that the Court characterized as “broader protection” than the right created by the U.S. Supreme Court in Roe. The case not only created a broad right to abortion, it also created a right to taxpayer funding of abortions — a claim that the U.S. Supreme Court rejected.

Q) How does Minnesota’s state abortion laws compare to other states?

A) Unlike most states, Minnesota has no law that limits abortions after a child obtains viability — the ability to live outside the womb, albeit with medical support. This is because the state’s post-viability abortion ban was struck down by a federal court in 1974 and legislative attempts to pass new prohibitions have been vetoed. The state also is one of 15 states that pay for poor women’s abortions.

Q) Last year, several state regulations related to abortion restrictions were litigated. Where do they stand now?

A) A Minnesota abortion doctor, nurse midwife and a Unitarian church are currently challenging many laws regulating abortion in Ramsey County District Court. (The case number is 62-CV-19-3868 for readers who want to read the legal documents.) The plaintiffs claim that the state constitution requires allowing people other than doctors to perform abortions, while simultaneously claiming that it is unconstitutional to require that women receive information about certain medical aspects of abortion as well as social services support for pregnant and parenting women at least 24 hours before an abortion is performed. They demand that teens be allowed to obtain abortions without parental involvement, with one of the experts claiming 14-year-olds are as capable as adults in making medical decisions. Perhaps the most bizarre claim plaintiffs make is that it is unconstitutional to require abortion providers to report patient demographic information, as well as various medical information like maternal complications and deaths within 90 days of an abortion to the Department of Health. The case is being defended by State Attorney General Keith Ellison, who as a member of Congress had a 100% voting record in favor of abortion according to NARAL Pro-Choice America and was endorsed by the Minnesota chapter of the organization during his run for AG. Early in the case, the Minnesota Senate attempted to intervene in the lawsuit to defend laws they had passed, but the attorney general persuaded the Court to deny the Senate’s request. I should note that I was one of the lawyers the Senate hoped to have assist in defending these laws.

Both sides have asked the trial judge to rule on several issues based only on the legal documents and affidavits or declarations of various experts. The Court is considering their arguments.

Q) Given the state’s laws, where would you recommend pro-life advocates concentrate their efforts?

A) Unlike other outpatient surgical facilities, Minnesota’s abortion facilities are unregulated. The state should establish a licensing process, require all abortion clinics to be licensed, and authorize the state commissioner of health to inspect clinics periodically. Legislators should also pass a narrow definition of “therapeutic abortion” to limit taxpayer funding of abortion to cases involving abortions due to a serious physical condition or impairment arising from or related to the pregnancy. Notwithstanding that the Minnesota Supreme Court used this term in Doe v. Gomez, the Court failed to define it, while rejecting the dissenting justice’s claim that the opinion effectively permitted “any woman eligible for medical assistance to obtain an abortion ‘on demand.’”

Q) What gives you hope in the pro-life cause?

A) Truth is on our side. As a majority of the judges on the U.S. Court of Appeals for the Eighth Circuit recognized in Planned Parenthood v. Rounds, abortion terminates “the life of a whole separate, unique living human being.”

Q) What else do you want pro-life advocates to understand about this particular point in time?

A) We are winning the hearts and minds of our fellow citizens on this issue. We must simply pray and persevere as we continue walking with moms in need.

Collett is a professor of law at the University of St. Thomas, where she teaches property law, constitutional litigation, and Catholic social thought and the United Nations. She is cofounder and director of the Prolife Center at the university. She has represented numerous government officials in defending unborn life and marriage. Most recently, she represented Gov. Kristi Noem of South Dakota and 239 other women scholars and professionals in an amicus brief in the Dobbs case.

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MAKING ABORTION ‘UNTHINKABLE’

With speculation high on ways the U.S. Supreme Court might rule on Mississippi’s ban on abortion after 15 weeks of pregnancy, versus a 24-week ban permitted under Roe v. Wade, the executive director of the Minnesota Catholic Conference cautions that the need to advocate for the unborn will not go away anytime soon.

Even if the court in Dobbs v. Jackson declares the U.S. Constitution neutral on abortion, or refashions the undue burden standard established in previous court cases, states will be free to enact their own abortion laws, with some like California seeking ways to be safe havens for abortion, said Jason Adkins.

Nor will reducing the ability to obtain an abortion impact the demand for abortion, Adkins told Patrick Conley, host of the “Practicing Catholic” radio show, for an episode airing at 9 p.m. Dec. 31 on Relevant Radio 1330 AM.

“The work of making abortion unthinkable, that work will go on well into the future,” Adkins said.

Asked how Catholics can continue to help, Adkins said it is important to work for justice for the unborn and charity for women who are bearing difficult pregnancies, providing them with the support they need to choose life. Prayer also is important, Adkins said, encouraging people to pray the Angelus each day at noon and 6 p.m. while considering the many issues that surround abortion.

To hear more of the conversation, including discussion of Minnesota law and the state’s future on the abortion front, listen to the full episode at practicingcatholicshow.com.

— Joe Ruff