Dobbs and minority rule: The view from Minnesota

Most Americans support the right to an abortion, but in the Upper Midwest, Minnesota is isolated in its protection of that right. 

By Scott Wilson and Sharon Van Dyck

U.S. public opinion generally favors an individual woman’s right to an abortion. The Supreme Court’s recent ruling in Dobbs v. Jackson Women’s Health Org.¹ represents a marked divergence from public opinion. The divergence is less than surprising, since the composition of the current Court is a product of electoral and legislative mechanisms that lend themselves to minority control.

But while eliminating abortion rights may face headwinds in national opinion, it has received a warm welcome in many Midwestern state capitals. Minnesota stands alone in the upper Midwest as a jurisdiction offering stable legal protection of a woman’s right to terminate an unwanted pregnancy.

This article will review the role of minority control in the composition of the Dobbs Court and briefly survey the status of abortion rights in Minnesota’s neighboring states.

The anti-democratic nature of the Electoral College and the U.S. Senate

Democrats have won the popular vote in seven of the last eight presidential elections, but—thanks to the Electoral College—have elected presidents in only five of those cycles. According to FiveThirtyEight, a Democratic presidential candidate must now beat his or her Republican opponent by at least 3.5 percent in the popular vote to gain the White House—the largest advantage held by either party since 1948.² The explanation lies in an entrenched structural bias that favors smaller, more conservative states.

Minority control is even more extreme in the U.S. Senate. In the current Senate, the 50 sitting Democratic senators represent 42 million more Americans than do the 50 sitting Republican senators.³ An exaggerated form of the same structural bias operates here: The 25 largest states contain nearly 84 percent of the U.S. population. This means, remarkably, that 16 percent of the country (the population of the 25 smallest states) controls half the seats in the Senate.⁴ The Republican Senate caucus, which represents smaller, more rural states, hasn’t represented a majority of Americans since 1996, despite enjoying Senate majorities in more than half of the 12 election cycles since that year.⁵ The problem is aggravated even further by the filibuster, which allows as few as 41 Republican senators to block most legislation.

Supreme Court composition and Dobbs

The president and the Senate determine the composition of the United States Supreme Court over time through the process of appointment and confirmation. The six-to-three “supermajority” of conservative appointees⁶ on the current Court is a direct and recent expression of the anti-democratic aspects of those two institutions.⁷

Four of the five justices voting to overturn Roe and Casey (Justices Alito, Gorsuch, Kavanaugh, and Barrett) were appointed by Republican presidents—George W. Bush and Donald Trump—who were initially elected with less than a majority of the popular vote. Five of the sitting justices (the same four, plus Chief Justice Roberts) were confirmed by U.S. Senates controlled by Republican caucuses that did not represent a majority of Americans.⁸

The minority-controlled Republican Senates from 2014 through 2020 had a particular impact. During 2016, Senate Majority Leader Mitch McConnell blocked President Barack Obama’s nomination of Merrick Garland to replace Justice Antonin Scalia for over 10 months, until President Donald Trump could take office and name Neil Gorsuch as Justice Scalia’s replacement.⁹ But after Justice Ruth Bader Ginsburg died on September 18, 2020, her replacement, Amy Coney Barrett, was confirmed in just over one month, on October 26, 2020.¹⁰

With Justice Barrett’s confirmation, Chief Justice Roberts’s vote was no longer needed to form a conservative majority on the Court. The Court took review in Dobbs seven months later, on May 17, 2021. The case was decided on June 24, 2022. Justice Alito wrote for the majority, joined by Justices Thomas, Gorsuch, Kavanaugh, and Barrett.¹¹

Dobbs and public opinion

Speaking for the Dobbs majority, Justice Alito plainly stated his lack of concern for negative public opinion: “[W]e cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work.”¹²

Polling by the Pew Research Center suggests there is considerable negative public opinion to be unconcerned about. In a survey of 6,174 Americans taken between June 27 and July 4, 2022, 57 percent disapproved of Dobbs, with 43 percent strongly disapproving.¹³ Sixty-two percent held the opinion that abortion should be legal in most or all cases. The divide is unsurprisingly partisan, with 84 percent of Democrats holding this opinion, compared with 38 percent of Republicans.¹⁴ 

In Minnesota the split in opinion may be closer, but still favors abortion rights. In a KARE 11 / Star Tribune / MPR News poll of 800 likely voters conducted between Sept. 12 and 14, 2022, 52 percent said they opposed Dobbs, with 40 percent approving. Fifty-five percent of the respondents said that abortion should be legal in most or all cases. The partisan divide is similar to that found in the referenced national poll.¹⁵ 

Elections function in part as polls with meaning. The August 2022 landslide defeat (59-41 percent) of an anti-abortion ballot initiative in Republican Kansas suggests to New York Times data analyst Nate Cohn that “around 65% of voters nationwide would reject a similar initiative to roll back abortion rights, including in more than 40 of the 50 states….”¹⁶

Minnesota’s geographic isolation on the question of abortion rights

The right to choose an abortion in most or all circumstances may be supported by a majority of Americans, but in the Midwest, jurisdictions supportive of abortion rights are in the minority. Minnesota is one of the few.

The Midwest presents a rapidly changing—and generally anti-choice—legal landscape. While there have been some surprising developments (the Kansas referendum, for example), Minnesota and Illinois are the only Midwestern states where abortion rights are “legal and likely to be protected,” according to the Washington Post.¹⁷ Elsewhere in the Midwest, state law ranges from Missouri—where a law banning abortion at conception, with no exceptions for rape or incest, took effect when the state attorney general certified the Dobbs decision¹⁸—to Michigan, a state with a Republican-controlled legislature and a Democratic governor facing an election, where a pre-Roe abortion ban was recently enjoined by a county circuit judge¹⁹ and a referendum has been placed on the November mid-term-election ballot that would amend the state constitution to protect the right to an abortion.²⁰

Neighboring states

In the Upper Midwest, Minnesota is the only state west of the Great Lakes that provides a stable (i.e., constitutional) guarantee of the right to terminate a pregnancy. Here is the current state of abortion rights in states adjacent to Minnesota: 

Wisconsin

While its legal status is less than clear, post-Dobbs abortion is functionally banned (from conception and without exception for rape or incest) under a statute that traces its roots to 1849.²¹ Gov. Tony Evers and Attorney General Josh Kaul, both Democrats, have refused to enforce the ban and have challenged it in court,²² but clinics stopped performing abortion procedures in Wisconsin effective June 24, 2022.²³

The Wisconsin Legislature is controlled by Republicans. Gov. Evers faces an election in November (as does Attorney General Kaul). The Wisconsin Supreme Court is currently controlled by a narrow 4-3 conservative majority. In April of next year, a statewide election will be held to fill the seat of a retiring conservative justice.²⁴

Iowa

The law in Iowa has followed a politically driven, whiplash-inducing path. In 2018, the Iowa Supreme Court rejected the undue burden test fashioned by the United States Supreme Court in Planned Parenthood v. Casey,²⁵ and found that the due process clause of the Iowa Constitution protected abortion as a fundamental right, subjecting state restrictions to strict scrutiny.²⁶ 

Immediately following that decision, between August 1, 2018 and the end of 2020, Republican Gov. Kim Reynolds appointed four justices²⁷ to the seven-member court. On June 17, 2022, one week before the Dobbs decision, the Iowa court reversed its 2018 decision, rejecting “the proposition that there is a fundamental right to an abortion in Iowa’s constitution.”²⁸

For now, Iowa law permits abortion up to 20 weeks post-fertilization.²⁹ In the mix is a “heartbeat bill” that prohibits abortion at roughly six weeks,³⁰ but that restriction is presently subject to a permanent injunction.³¹ Additional restrictions other than gestational time limits remain in place.³²

South Dakota

Abortion is banned from conception under a “trigger ban” that went into effect immediately upon release of the Dobbs opinion. There are no exceptions for rape or incest.³³ 

North Dakota

A trigger ban went into effect 30 days after Dobbs. This law also bans abortion from conception, but contains exceptions for rape and incest.³⁴ It has been preliminarily enjoined.³⁵ 

There is a heartbeat ban³⁶ similar to Iowa’s, which is permanently enjoined based on pre-Dobbs federal law.³⁷ For the present, there remains in place a statute permitting abortion until 20 weeks post-fertilization.³⁸ As in Iowa, additional restrictions other than gestational time limits remain.³⁹

In practical terms, Red River Women’s Clinic, the state’s only abortion clinic, moved from Fargo to Moorhead, Minnesota on August 6, 2022 and will probably remain there, given Minnesota’s more favorable legal environment.⁴⁰

Conclusion

Most Americans favor a right to abortion protected under the U.S. Constitution. The Supreme Court, which eliminated that right in Dobbs, is constituted through an appointment process affected by governmental structures—the Electoral College and the Senate—that empower the minority will of smaller, more rural states. The result is a radically changed abortion policy that is broadly unpopular on a national level. 

Despite its national unpopularity, that changed policy finds a receptive foothold in the law of most Midwestern states. Minnesota is now isolated in the Upper Midwest as a jurisdiction providing a stable, constitutional guarantee of the right to terminate a pregnancy.

SHARON VAN DYCK is a 35-year civil litigator whose practice has focused on dispositive motions and appeals for the past 20 years. She is admitted to practice before the United States Supreme Court, the Eighth, Eleventh, and Fifth Circuit Courts of Appeals, the Federal District Courts of Minnesota and North Dakota, the Federal Court of Claims, and all Minnesota state courts. Sharon is a 1987 magna cum laude graduate of William Mitchell College of Law.

SCOTT WILSON is an appellate practitioner with 39 years’ experience in civil litigation. He is a graduate of Duke University and Washington University School of Law. Scott offices in Minneapolis and primarily represents individuals seeking to enforce or protect their rights. He is admitted to practice before the Eighth Circuit, the Federal District Court for the District of Minnesota, and all Minnesota state courts.

NOTES

¹ 142 S.Ct. 2228, 213 L.Ed.2d 545 (2022). 

² Geoffrey Skelley, “Even Though Biden Won, Republicans Enjoyed the Largest Electoral College Edge in 70 Years. Will That Last?” www.fivethirtyeight.com, 1/19/2021. 

³ Ian Millhiser, “America’s anti-democratic Senate, in one number,” www.vox.com, 1/6/2021.

⁴ Id. 

⁵ Stephen Wolf, “How minority rule plagues Senate: Republicans last won more support than Democrats two decades ago,” www.dailykos.com, 2/23/2021.

⁶ The nine sitting justices of the United States Supreme Court are as follows, in order of appointment:

Justice Clarence Thomas, age 73—nominated 1991 by George H.W. Bush

Chief Justice John G. Roberts, Jr., age 67—nominated 2005 by George W. Bush

Justice Samuel A. Alito, Jr., age 72—nominated 2005 by George W. Bush

Justice Sonia Sotomayor, age 67—nominated 2009 by Barack Obama

Justice Elena Kagan, age 61—nominated 2010 by Barack Obama

Justice Neil M. Gorsuch, age 54—nominated 2017 by Donald Trump

Justice Brett Kavanaugh, age 57—nominated 2018 by Donald Trump

Justice Amy Coney Barrett, age 50—nominated 2020 by Donald Trump

Justice Ketanji Brown Jackson, age 51—nominated 2022 by Joe Biden

⁷ The resulting Court is not just disproportionately conservative. It is also disproportionately Catholic. Six of the nine sitting justices (66.7%) identify as Catholic (five of these—Chief Justice Roberts and Justices Thomas, Alito, Kavanaugh, and Barrett—are Republican appointees). Twenty-two percent of the population of the United States identifies as Catholic. The Religion of the Supreme Court Justices, news.gallup.com, 4/8/2022.

⁸ See Wolf, supra.

⁹ What Happened with Merrick Garland in 2016 and Why It Matters Now, NPR, 6/19/2018.

¹⁰ Justice Kavanaugh was confirmed in the interim. 

¹¹ See Dobbs v. Jackson Women’s Health Org., 142 S.Ct. 2228, 213 L.Ed.2d 545 (2022).

¹² Id. at 2278.

¹³ On the other side of that coin, 41% approved of Dobbs, 25% strongly approving. Majority of Public Disapproves of Supreme Court’s Decision to Overturn Roe v. Wade, www.pewresearch.org, 7/6/2022.

¹⁴ Id.

¹⁵ “Minnesota poll: 52 percent of voters oppose overturning Roe v. Wade,” mprnews.org, 9/19/2022.

¹⁶ Kansas Result Suggests 4 Out of 5 States Would Back Abortion Rights in Similar Vote, New York Times, 8/4/2022.

¹⁷ “Abortion is now banned in these states. See where laws have changed.” Washington Post, updated 9/26/2022 (Washington Post abortion law tracker); see also Tracking the States Where Abortion Is Now Banned, New York Times, updated 9/23/2022 (New York Times abortion law tracker). 

¹⁸ Id.

¹⁹ “Abortion remains legal in Michigan after injunction blocks 1931 law being reinstated,” NPR, 8/20/2022.

²⁰ Id.; “After months, it’s decided: Michiganders will vote on abortion rights in November,” NPR, 9/9/2022.

²¹ Wis. Stat. §940.04 (2022); see Frishman, “Twentieth Anniversary Celebration: Wisconsin Act 110: When an Infant Survives an Abortion,” 20 Wis. Women’s L.J. 101, 124 (Spring 2005), citing Wis. Stat. §133.11 (1849). 

²² The lawsuit, filed in Dane County, Wisconsin, seeks a declaration, among other things, that Wis. Stat. §940.04 has been superseded by more recent legislation. Gov. Evers, AG Kaul Announce Direct Legal Challenge to Wisconsin’s 1800s-era Criminal Abortion Ban, Wisconsin Department of Justice news release, 6/28/2022.

²³ Washington Post and New York Times abortion law trackers, supra.

²⁴ In Wisconsin, 2 Huge Races Stand Between GOP and Near-Total Power, New York Times, 8/15/2022; “A ban, a lawsuit, an election: Abortion firestorm erupts in Wisconsin,” Washington Post, 6/30/2022. 

²⁵ 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (674 (1992).

²⁶ See Planned Parenthood of the Heartland, Inc. v. Reynolds, 975 N.W.2d 710, 715 (Iowa 2022) (PPH III), discussing Planned Parenthood of the Heartland, Inc. v. Reynolds, 915 N.W.2d 206, 237-38, 240 (Iowa 2018) (PPH II).

²⁷ Chief Justice Christensen and Justices McDonald, Oxley, and McDermott. 

²⁸ PPH III, supra. 

²⁹ Iowa Code §146B.2(1) (2022). 

³⁰ Iowa Code §146C.2(2) (2022).

³¹ After Roe Fell, Center for Reproductive Rights, reproductiverights.org/maps/state/iowa (last accessed 9/26/2022), n.2, citing Planned Parenthood of the Heartlands, Inc. v. Reynolds, No EQCE83074, 2019 WL 312072 at *5 (Iowa Dist., 1/22/2019). Governor Reynolds continues to seek enforcement of the statute. New York Times abortion law tracker, supra.

³² See generally After Roe Fell, Center for Reproductive Rights, reproductiverights.org/maps/state/iowa, supra.

³³ S.D. Codified Laws §22-17-5.1 (2022).

³⁴ N.D. Cent. Code §12.1-31-12 (2021).

³⁵ After Roe Fell, Center for Reproductive Rights, reproductiverights.org/maps/state/north-dakota (last accessed 9/27/2022), n.2, citing Access Indep. Health Serv. Inc. v. Wrigley, No. 08-2022-CV-1608 (N.D. S. Cent. Dist. Ct., 8/25/2022).

³⁶ N.D. Cent. Code §14-02.1-05.2 (2021).

³⁷ See MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768 (8th Cir. 2015), cert. denied (U.S., 1/25/2016). 

³⁸ N.D. Cent. Code §14-02.1-05.3 (2021).

³⁹ See generally After Roe Fell, Center for Reproductive Rights, reproductiverights.org/maps/state/north-dakota, supra.

⁴⁰ “North Dakota judge blocks abortion ban from taking effect Friday,” Washington Post, 8/25/2022.