Understanding the state Constitution’s protections for reproductive rights
By Sharon Van Dyck and Scott Wilson
On June 24, 2022, the United States Supreme Court delivered a “serious jolt” to the legal system and to the individual personal rights of American women. In
Dobbs v. Jackson Women’s Health Org.,
1 the Court overturned
Roe v. Wade2 and
Planned Parenthood v. Casey,
3 eradicating for the first time in its history a personal Constitutional right that the Court formerly recognized—one that it had repeatedly affirmed.
In this radically altered reproductive rights landscape, state constitutional rights are now central and determinative. This article provides a basic survey of existing and evolving reproductive rights law protected by Minnesota’s state constitution, viewed against the backdrop of the federal law pre- and post-Dobbs.
FEDERAL CONSTITUTIONAL LAW BEFORE AND AFTER DOBBS
Roe v. Wade
Decided in 1973, Roe was grounded in an unenumerated right of privacy identified primarily in the Fourteenth Amendment’s due process clause, with antecedents in Supreme Court jurisprudence extending back to 1891.4 The case was decided 7-2, and the majority opinion was written by Justice Harry Blackmun of Minnesota. The right to abortion recognized in Roe was identified as “fundamental,” subjecting restrictions to strict scrutiny (i.e., regulation “may be justified only by a ‘compelling state interest’” advanced through the least burdensome means).5
Roe imposed a trimester-based framework on permissible regulation of abortion: During the first trimester of pregnancy, no restrictions were permitted (“the abortion decision and its effectuation must be left up to the medical judgment of the pregnant woman’s attending physician.”). During the second trimester, regulation was permissible to protect the health of the mother. During the third trimester (“the stage subsequent to viability”), the state could regulate and even ban abortion “except where it is necessary, in appropriate medical judgment, for the preservation of the life and health of the mother.”6
Planned Parenthood v. Casey
Nineteen years later, the Court was asked to overrule Roe. It refused, choosing instead to limit and modify Roe in a complex 80-page plurality decision.
Subjecting Roe to an extensive stare decisis analysis,7 the Court reaffirmed its core holding: A “woman’s right to terminate her pregnancy before viability… is a rule of law and a component of liberty we cannot renounce.”8 However, the Court in Casey discarded the trimester framework, making viability (generally at 24 of 40 weeks) the marker for when “the State’s interests are… strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure.”9 Most important, the Court announced a new, less rigorous “undue burden” standard for pre-viability restrictions (state regulation is permissible if it does not have “the purpose or effect of imposing a substantial obstacle in the path of a woman seeking an abortion….”).10 Casey placed greater emphasis on the state’s interest in protection of fetal life, effectively allowing first trimester waiting periods and “informed consent” requirements.
Dobbs v. Jackson Women’s Health Org.
By greenlighting substantial pre-viability restrictions, Casey subjected Roe to a gradual death by a thousand regulatory cuts.11 Dobbs ended this process abruptly.
The question taken vs. the question decided
The difference between the question the Court accepted for review and the issue it ultimately decided is striking. At the request of the State of Mississippi, the Court took review to decide “[w]hether all pre-viability prohibitions on elective abortions are unconstitutional.”12 Rather than limiting its review to that question (which was tailored to the challenged statute, Mississippi’s pre-viability ban on abortions after 15 weeks), the Court overruled Roe and Casey: “We… hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.”13
Justice Alito’s majority opinion
Justice Samuel Alito wrote for the majority, joined by Justices Thomas, Gorsuch, Kavanaugh, and Barrett. The Court held that, contrary to Roe and Casey, a right to an abortion cannot be found in the Fourteenth Amendment due process clause’s guarantee of liberty because it is not “deeply rooted in [the Nation’s] history and tradition” and it is not “essential to our Nation’s ‘scheme of ordered liberty.’”14
The Court understood the term “liberty” itself as empty of meaning. It therefore engaged in an historical inquiry going back to the roots of the English common law.15 It found that, from the time of the Fourteenth Amendment’s 1868 adoption until Roe, most states made abortion a crime, as did the common law in antiquity.16 This led the Court to what it described as “[t]he inescapable conclusion… that a right to abortion is not deeply rooted in the Nation’s history and traditions.” On this basis, the Court held that the right to an abortion is not part of a broader entrenched right of privacy, but instead is only a competing interest to be balanced as a function of “ordered liberty.”17
The Court insisted that substantive due process antecedents to Roe and Casey (like Griswold v. Connecticut,18 which identified a constitutional right in married people to access to contraception) are not undermined by its decision because those cases do not implicate destruction of a fetus, a “critical moral question.”19 The Court did not explain how this distinction would, in logic, prevent future courts from using the same analysis to revoke other established unenumerated rights.
The Court noted that stare decisis is not an “inexorable command”—and that it is at its weakest in interpretation of the Constitution.20 The Court applied five factors in determining that Roe and Casey did not deserve respect under the doctrine of stare decisis: (1) nature of the error; (2) quality of reasoning; (3) workability; (4) effect on other areas of law; and (5) reliance interests.21
The heart of the Court’s analysis here falls under the first two factors—its findings that Roe was “egregiously wrong,” and its reasoning “exceptionally weak.”22 Remarkably, the Court denied the existence of significant reliance on the 49-year-old abortion right, asserting there were no “concrete” reliance interests, unlike those that might exist in the context of “property and contract rights.”23
The Court refused to consider the public perception of political influence in its determination to overrule a “controversial ‘watershed’ decision”: “[W]e cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work.”24
Given the Court’s determination that no fundamental constitutional right to an abortion exists, Mississippi’s 15-week abortion ban was subject to rational-basis review, the most deferential standard.25
“Legitimate state interests” perceived as supporting the law included: “respect for and preservation of prenatal life at all stages of development…; protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; the preservation of the integrity of the medical profession; the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex or disability.”26 Given the presence of these legitimate state interests under rational basis review, the constitutional challenge to the Mississippi ban failed.27
Concurrences
Justice Thomas’s concurrence28 is a wholesale attack on substantive due process under the due process clause of the Fourteenth Amendment,29 which he would abolish altogether: “As I have previously explained, ‘substantive due process’ is an oxymoron that ‘lack[s] any basis in the Constitution.’”30
Justice Thomas agreed with limitation of Dobbs to the abortion context, but stated that in future cases the Court should reconsider as “demonstrably erroneous” all substantive due process decisions, including Griswold, supra (right of married persons to obtain contraception); Lawrence v. Texas31 (right to engage in private, consensual sex acts); Obergefell v. Hodges32 (right to same-sex marriage).33
Justice Kavanaugh’s concurrence can be fairly described as an attempt to soften the blow. He acknowledged what he perceived to be a good-faith controversy over abortion34 and observed the “Constitution is neither pro-life nor pro-choice.”35
Justice Kavanaugh emphasized that—in his view—other substantive due process precedents affecting contraception and marriage are not threatened, expressly including Griswold, supra; Eisenstadt, supra (right of unmarried persons to obtain contraceptives); Loving v. Virginia36 (right to interracial marriage); and Obergefell, supra. He did not explain this assertion.37
Justice Kavanaugh also asserted that the right to travel to another state for an abortion is not threatened, “based on the constitutional right to interstate travel.” He described this issue as “not especially difficult as a constitutional matter.” No support is cited.38
Chief Justice Roberts concurred in the judgment. His opinion expressed regret that the Court did not strike a softer blow, limiting its review to the question it initially took. Chief Justice Roberts pointed out “[w]e granted certiorari to decide one question: ‘Whether all pre-viability prohibitions on elective abortions are unconstitutional.’” He further noted that in arguing for review, “Mississippi stated that its case was ‘an ideal vehicle’ to ‘reconsider the bright-line viability rule,’ and that a judgment in its favor would ‘not require the Court to overturn’” Roe and Casey.’”39 Chief Justice Roberts would have adhered to “a simple but fundamental principal of judicial restraint: If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.”40 “Surely,” he argued, “we should adhere closely to principles of judicial restraint here, where the broader path the Court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed applying the doctrine of stare decisis.”41
The Chief Justice observed that “The Court’s decision to overrule Roe and Casey is a serious jolt to the legal system—regardless of how you view those cases. A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case.”42 He would have taken “a more measured course,” discarding the viability line, but recognizing a right to terminate a pregnancy that extends “far enough to ensure a reasonable opportunity to choose,” upholding Mississippi’s 15-week ban on that basis.43 “I would decide the question we granted review to answer,” he wrote.44 Chief Justice Roberts agreed the answer to that question is no, concurring in the judgment only.
The dissent
The dissent by Justices Breyer, Sotomayor, and Kagan is a 23-page requiem for unenumerated personal rights. The three dissenting justices took the unusual step of co-signing their opinion, which has been understood as an expression of unity and a response to the extreme nature of the majority’s opinion.45
The dissent is intensely critical of both the majority’s Fourteenth Amendment due process clause analysis46 and its stare decisis analysis.47 Most striking, however, are the dissent’s critique of the majority’s decision in terms of the Court’s legitimacy, and its discussion of that decision’s future implications for unenumerated personal rights.
The dissent’s view of the decision’s impact on the Court’s legitimacy is encapsulated in two ringing statements:
“The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them. The majority thereby substitutes a rule by judges for the rule of law.”48
“Now a new and bare majority of this Court—acting at practically the first moment possible—overrules Roe and Casey…. It eliminates a 50-year-old constitutional right that safeguards women’s freedom and equal station. It breaches a core rule-of-law principle, designed to promote constancy in the law. In doing all of that, it places in jeopardy other rights, from contraception to same-sex intimacy and marriage. And finally, it undermines the Court’s legitimacy.”49
The dissent further observed that a federal ban on abortion is now permissible.50 It asserted “[w]hatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens.”51
As to the decision’s implications for unenumerated rights generally, the dissenting justices focused on the absence of any reasoned principle that would prevent the Dobbs Court’s analysis from being used as Justice Thomas advocates—to dismantle all unenumerated rights based in Fourteenth Amendment substantive due process:
“… no one should be confident that this majority is done with its work. The right Roe and Casey recognized does not stand alone. To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation…. They are all part of the same constitutional fabric, protecting autonomous decisionmaking over the most personal of life decisions. The majority (or to be more accurate, most of it) is eager to tell us today that nothing it does ‘cast[s] doubt on precedents that do not concern abortion.’ But how could that be? The lone rationale for what the majority does today is that the right to elect an abortion is not ‘deeply rooted in history’…. The same could be said, though, of most of the rights the majority claims it is not tampering with…. So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.”52
“Assume the majority is sincere in saying, for whatever reason, that it will go so far and no further. Scout’s honor. Still, the future of today’s decision will be decided in the future. And law often has a way of evolving without regard to original intentions—a way of actually following where logic leads, rather than tolerating hard-to-explain lines.”53
MINNESOTA LAW
The right to terminate a pregnancy has therefore been returned to the states, stripped of any protection under the United States Constitution. For Americans seeking to protect that right, state law is now paramount. In Minnesota, the right is recognized under multiple provisions of the state constitution.
Women of the State v. Gomez54
The issue came before the Minnesota Supreme Court as a challenge to provisions of the state’s Medical Assistance statute limiting the availability of public funds for abortion services.55 Despite that narrow statutory context, the Gomez decision is understood as establishing a fundamental right to terminate a pregnancy under the Minnesota Constitution. The case was decided 5-1, with Chief Justice Sandy Keith writing for the majority. The Court concluded that the challenged Medical Assistance provisions “impermissibly infringe[d] on a woman’s fundamental right of privacy under… the Minnesota Constitution.”56
Underlying Minnesota constitutional provisions and principles
The Gomez Court looked substantially to a prior decision, Jarvis v. Levine,57 for its understanding of the right of privacy guaranteed by the Minnesota Bill of Rights.58 The supporting Minnesota constitutional references are concentrated in a single footnote:
“Specifically, in Jarvis v. Levine, we indicated that the right of privacy under the Minnesota Constitution is rooted in Article I, Sections 1, 2 and 10. 418 N.W.2d 139 (Minn. 1988). Article I, Section 1 [Object of government] provides: ‘Government is instituted for the security, benefit and protection of the people * * *.’ Article I, Section 2 [Rights and privileges] provides: ‘No member of this state shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers. * * *.’ Article I, Section 10 [Unreasonable searches and seizures prohibited] provides: ‘The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated * * *.’ … We also find Article I, Section 7 [Due process] applicable: ‘No person shall be held to answer for a criminal offense without due process of law * * * nor be deprived of life, liberty or property without due process of law.’”59
Jarvis relied upon State v. Gray,60 which for the first time recognized a fundamental right of privacy rooted in the Minnesota Constitution. Gray did so, however, by refusing to expand that fundamental right to protect engagement in commercial sex, and without specifying the applicable Minnesota constitutional provisions.61 Instead, the Court in Gray relied heavily upon what it understood as a generalized natural law analysis in Griswold and Roe, since “[a] comparison of the Minnesota Bill of Rights with the federal constitutional provisions upon which the right of privacy is founded shows that the rights protected by the Federal Constitution are also protected by the Minnesota Bill of Rights.”62
The Court’s determination regarding the right of privacy found in the Minnesota Constitution
The Gomez Court found that Minnesota’s Constitution provides for a broader right than that provided by the federal constitution:
“In reaching our decision, we have interpreted the Minnesota Constitution to afford broader protection than the United States Constitution of a woman’s fundamental right to reach a private decision on whether to obtain an abortion and thus reject the United States Supreme Court’s decision on this issue in Harris v. McRae, 448 U.S. 297… (1980).”63
In the pre-Dobbs legal environment, all parties to the case conceded “the state constitution protects a woman’s right to choose to have an abortion.”64 Relying on Jarvis, the Court reasoned:
“The right of procreation without state interference has long been recognized as ‘one of the basic civil rights of man * * * fundamental to the very existence and survival of the race.’ Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 86 L. Ed. 1655, 62 S. Ct. 1110 (1942). We can think of few decisions more intimate, personal, and profound than a woman’s decision between childbirth and abortion. Indeed, this decision is of such great import that it governs whether the woman will undergo extreme physical and psychological changes and whether she will create lifelong attachments and responsibilities. We therefore conclude that the Minnesota Constitution encompasses a woman’s right to decide to terminate her pregnancy.65 (Emphasis supplied.)
From these basic principles, the Gomez Court went on to overturn Minnesota’s statutory scheme restricting the use of public funds for abortion:
“In the present case, the infringement is the state’s offer of money for women for health care services necessary to carry the pregnancy to term, and the state’s ban on health care funding for women who choose therapeutic abortions. Faced with these two options, financially independent women might not feel particularly compelled to choose either childbirth or abortion based on the monetary incentive alone. Indigent women, on the other hand, are precisely the ones who would be most affected by an offer of monetary assistance, and it is these women who are targeted by the statutory funding ban. We simply cannot say that an indigent woman’s decision whether to terminate her pregnancy is not significantly impacted by the state’s offer of comprehensive medical services if the woman carries the pregnancy to term. We conclude, therefore, that these statutes constitute an infringement on the fundamental right of privacy.”66
Though handed down three years after Casey, Gomez deliberately applies Roe’s strict scrutiny standard of review, declining to adopt Casey’s “undue burden” analysis.67
Given that the right identified in Gomez is grounded independently in the Minnesota Constitution, the current Minnesota Supreme Court will likely follow Gomez rather than Dobbs in any future case implicating reproductive rights.
Gomez is facially limited in application, but founded on a broad principle
The Gomez Court offered a limited core ruling: “Statutes that permit the use of public funds for childbirth-related medical services but prohibit similar use of public funds for medical services related to therapeutic abortions impermissibly infringe on a woman’s fundamental right of privacy under Art. 1 Sections 2, 7 and 10 of the Minnesota Constitution.”68 It cautioned that
“[i]n light of the emotional and political overtones of the abortion issue in this country, we must emphasize that this case presents a very narrow legal issue,”69 and in its concluding paragraph stated “[w]e emphasize that our decision is limited to the class of plaintiffs certified by the district court and the narrow statutory provisions at issue in this case.”70
Still, the reasoning of the Gomez Court is based in identification of a broad right of privacy that broadly supports the right to terminate a pregnancy:
“It is critical to note that the right of privacy under our constitution protects not simply the right to an abortion, but rather it protects the woman’s decision to abort; any legislation infringing on the decision-making process, then, violates this fundamental right.”71 (Emphasis in original.)
Gomez should, therefore, be understood to establish a right to terminate a pregnancy that is broad in application.
Judge Thomas Gilligan’s July 11, 2022 decision in Doe v. State of Minnesota72
Ramsey County District Court Judge Thomas Gilligan’s recent decision in Doe v. Minnesota is a case in point. In Doe, ruling on cross-motions for summary judgment, Judge Gilligan invalidated most existing Minnesota restrictions on access to abortion.
The case originated in a challenge to multiple Minnesota statutes brought by an obstetrician-gynecologist, a certified nurse midwife, and Our Justice, a Minnesota nonprofit corporation that provides support to women seeking abortions.73
The Doe court’s reasoning is based on Gomez.
Judge Gilligan summarized his holding:
“After three years of litigation, a thorough review of a well-developed factual record, and due consideration of the landmark decision of the Minnesota Supreme Court in [Gomez] and other reproductive rights jurisprudence, this court concludes that Minnesota abortion laws relating to mandated physician care, hospitalization, criminalization, parental notification, and informed consent are unconstitutional.
“These abortion laws violate the right to privacy because they infringe upon the fundamental right under the Minnesota Constitution to access abortion care and do not withstand strict scrutiny. The parental notification law violates the guarantee of equal protection for the same reasons. The informed consent law also violates the right to free speech under the Minnesota Constitution, because it is misleading and confusing, and does not withstand intermediate scrutiny.”74
Choosing to follow Gomez, Judge Gilligan referenced the United States Supreme Court’s decision in Dobbs, and the sudden change wrought by that case: “Unlike the Dobbs Court, which threw out nearly 50 years of precedent, this court must respect the precedent set by the Minnesota Supreme Court in Gomez and that precedent will guide this court’s decision in this case.”75
Statutes invalidated and upheld
Judge Gilligan applied Gomez76 and the broad right of privacy it identified in invalidating a lengthy list of abortion restrictions.77 Only certain reporting laws (excepting felony penalties associated with those laws) were upheld.
The statutes invalidated (and the reporting laws upheld) are:
• Physician-only law: Minn. Stat. §145.412, subd. 1(1) essentially required that an abortion could only be performed by a licensed physician (invalidated because it infringed on the fundamental right to access abortion care and did not withstand strict scrutiny).
• Hospitalization law: Minn. Stat. §145.412, subds. 1(2), 3(1) provided that certain abortions must be performed in a hospital (invalidated because it infringed on the fundamental right to access abortion care and did not withstand strict scrutiny).
• Reporting laws: Various sections of Minn. Ch. 145 and Minn. R. 4615.3600 required physicians or facilities providing abortions to report certain information to the state or face criminal penalties or professional discipline (upheld because they do not infringe on a fundamental right and are not violative of equal protection or the constitutional prohibition against special legislation—but the associated felony penalties were struck down (see below)).
• Felony penalties: Minn. Stat. 145.412, subds. 1(3), 4 made willfully performing abortions in a manner inconsistent with the Health Commissioner’s rules a felony (invalidated because they infringed on the fundamental right to access abortion care and did not withstand strict scrutiny).
• Two-parent notification law: Minn. Stat. §144.343, subds. 2-6 required abortion providers to notify both parents of a minor and observe a 48-hour waiting period before consent (invalidated because it infringed on the fundamental right to access abortion care and did not withstand strict scrutiny; it was also violative of equal protection).
• Mandatory disclosure law: Minn. Stat. §145.4242, required a physician performing an abortion or their agents to provide the patient with certain information during the informed consent process (invalidated because it infringed on the fundamental right to access abortion care and did not withstand strict scrutiny; it also infringed on free speech and did not withstand intermediate scrutiny).
• Physician disclosure law: Minn. Stat. §145.4242(a)(1)-(2) required that certain information required by the mandatory disclosure law must be provided only by a licensed physician (invalidated because it infringed on the fundamental right to access abortion care and did not withstand strict scrutiny).
• Mandatory delay law: Minn. Stat. §145.412, subds. 1(4), 4 required abortion providers to delay provision of care for at least 24 hours after the mandatory disclosures were made (invalidated because it infringed on the fundamental right to access abortion care and did not withstand strict scrutiny).
Recent developments in the case
Attorney General Keith Ellison declined to appeal the decision.78 Travis County Attorney Matthew Franzese moved to intervene as a matter of right (and, as backup, for permissive intervention) on August 4, 2022. Franzese moved for accelerated review at the same time. Of note, all parties to the lawsuit opposed the motion. Following a full hearing on the merits, Judge Gilligan denied Franzese’s intervention motion, but granted accelerated review of that order.79 Franzese appealed on September 12, 2022.80 The plaintiffs filed a Conditional Notice of Related Appeal on September 23, 2022 seeking review of an interlocutory order dismissing additional claims.81
A new notice of intervention was filed in the district court on September 12, 2022—the day the appeal period expired—on behalf of Mothers Offering Maternal Support (MOMS). MOMS, “an unincorporated association comprised of Minnesota mothers who have at least one minor daughter,” seeks post-judgment relief regarding the parental notification, mandatory disclosure, mandatory delay, and physician-only laws.82 An Answer to the Amended Complaint and multiple supporting affidavits were filed in support of the motion, including a 185-page Declaration and Expert Report by David C. Reardon.83 Despite a final judgment, resolution of proceedings at the district court level remain “open,” as does the district court docket.
Precedential impact
Gomez remains controlling law in Minnesota, and stare decisis remains a controlling doctrine, at least in the eyes of the Ramsey County District Court. It would take a form of judicial activism not commonly found in this state to upset Gomez’s holding. Given the thoughtfulness of the memorandum opinion and the breadth of Gomez’s confirmation of a woman’s right to choose to terminate an unwanted pregnancy under the Minnesota Constitution, it seems likely that Judge Gilligan’s summary judgment order will stand (assuming he does not grant the MOMS association’s petition to intervene for the purpose of post-judgment relief). However, to date Doe v. State remains a district court decision, specific to Ramsey County. A district court decision may well be persuasive in its reasoning, impacting the thinking of other judges. But it is not precedent, except within the Ramsey County District Court from which it came.
Gov. Walz’s June 25, 2022 executive order
The day after Dobbs was released, Gov. Tim Walz issued an executive order supporting access to abortion in Minnesota. The order:
- requires all state agencies to coordinate to protect reproductive health care services for “people… who are providing, assisting, seeking, or obtaining lawful reproductive health care services in Minnesota;”
- except as required by court order, or Minnesota or federal law, bars assistance from state agencies in “any investigation or proceeding that seeks to impose civil or criminal liability or professional sanctions” for provision of reproductive health care services or assistance relating to it; and
- provides protection against extradition for those charged with violation of the law of another state relative to reproductive health services, unless the acts supporting the charge would be criminal in Minnesota.84
Amendment of the Minnesota Constitution
Amending the Minnesota Constitution is relatively easy, requiring only bare majorities of the Minnesota House and Senate and the general electorate.
Art. IX, Sec. 1. Amendments, ratification.
“A majority of the members elected to each house of the legislature may propose amendments to this constitution. Proposed amendments shall be published with the laws passed at the same session and submitted to the people for their approval or rejection at a general election. If a majority of all the electors voting at the election vote to ratify an amendment, it becomes a part of this constitution. If two or more amendments are submitted at the same time, voters shall vote for or against each separately.”85
The relative ease of the process notwithstanding, an anti-abortion amendment is unlikely to occur in Minnesota as things now stand.86
Conclusion
Despite Dobbs’s elimination of the federal, constitutionally guaranteed right, a woman’s right to terminate an unwanted pregnancy still exists in Minnesota. It is grounded in the broad right of individual privacy identified in multiple provisions of the Minnesota Constitution, which offers broader protections than those formerly found in the United States Constitution. Attacks on access to abortion are likely to continue. However, the Ramsey County District Court’s recent invalidation of many of the Minnesota Legislature’s restrictions on abortion services, based on unwavering reliance on the Minnesota Constitution and Minnesota Supreme Court precedent, shows a solid grounding in and support for this constitutionally protected right.
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 Dobbs v. Jackson Women’s Health Org., 142 S.Ct. 2228, 2316, 213 L.Ed.2d 545 (2022) (Roberts, C. J., concurring in the judgment).
2 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).
3 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (674 (1992).
4 One of the later cited cases, Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (recognizing the right of unmarried people to obtain contraception) stated
“[i]f the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” See Roe, supra, 93 S.Ct. at 726.
5 See 93 S.Ct. at 727-28.
6 Id. at 732.
7 112 S.Ct. at 2808-16.
8 Id. at 2817.
9 Id. at 2804.
10 Id. at 2820-21.
11 Mayeri, Serena, “How Abortion Rights Will Die a Death of 1,000 Cuts,” New York Times, 8/30/2018.
12 Dobbs, supra, 142 S.Ct. at 2310 (Roberts, C. J., concurring in the judgment), quoting Pet. for Cert. i.
13 Id. at 2279.
14 See id. at 2246.
15 See id. at 2247.
16 Id. at 2248.
17 Id. at 2257.
18 381 U.S. 479, 85 S.Ct. 1578, 14 L.Ed.2d 510 (1965).
19 Dobbs, 142 S.Ct. at 2257-58.
20 Id. at 2262.
21 Id. at 2265.
22 Id. at 2265-66.
23 Id. at 2276-77.
24 Id. at 2278.
25 Id. at 2283.
26 Id. at 2284 (citation omitted). The first two considerations are familiar in reproductive rights jurisprudence, the last four less so.
27 Id.
28 Id. at 2300-04.
29 “… nor shall any State deprive any person of life, liberty, or property, without due process of law….” U.S. Const., Amendment 14, Sec. 1.
30 Id. at 2301.
31 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003).
32 576 U.S. 644, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2009).
33 Dobbs, 142 S.Ct. at 2301-02.
34 Id. at 2304.
35 Id. at 2305.
36 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967).
37 Dobbs, 142 S.Ct. at 2309.
38 Id.
39 Id. at 2310.
40 Id. at 2311.
41 Id.
42 Id. at 2316.
43 Id. at 2311-15.
44 Id. at 2317.
45 “Dissent in Dobbs offers a eulogy for Roe and the rule of law,” Courthouse News Service, 6/28/2022.
46 See id. at 2320-33. While the dissent acknowledges the majority’s forays into the law both before and after the 1868 ratification of the Fourteenth Amendment, it asserts, after analysis, that “[t]he majority’s core legal postulate… is that we in the 21st century must read the Fourteenth Amendment just as its ratifiers did…. If those people did not understand reproductive rights as part of the guarantee of liberty conferred in the Fourteenth Amendment, then those rights do not exist.” Id. at 2324. The dissent counters that “applications of liberty and equality can evolve while remaining grounded in constitutional principles, constitutional history, and constitutional precedents.” Id. at 2326.
47 See id at 2333-48.
48 Dobbs at 2335.
49 Id. at 2350.
50 … and, in fact, one has now been introduced by a sitting U.S. Senator. “Graham introduces bill to ban abortions nationwide after 15 weeks,” Washington Post, 9/13/2022.
51 Dobbs, 142 S.Ct. at 2318.
52 Dobbs, supra, 142 S.Ct. at 2319.
53 Id. at 2332.
54 542 N.W.2d 17 (Minn. 1995).
55 542 N.W.2d at 23.
56 542 N.W. at 18 (Syllabus of opinion).
57 418 N.W.2d 139 (Minn. 1988). Jarvis was decided in the context of forcible administration of neuroleptic medication. Relying on State v. Gray, 413 N.W.2d 107 (Minn. 1987), the court stated: “There is a right to privacy under the Constitution of Minnesota…. The right begins with protecting the integrity of one’s own body and includes the right not to have it altered or invaded without consent.” 418 N.W.2d at 148.
58 Minn. Stat., Const. Art. I, §§1-17.
59 Gomez at 26 n.10.
60 413 N.W.2d 107 (Minn. 1987).
61 413 N.W.2d at 110-14.
62 413 N.W.2d at 111.
63 Gomez at 19. The referenced decision of the U.S. Supreme Court in Harris rejected a constitutional challenge to the “Hyde Amendment,” which “restrict[s] the use of federal funds to reimburse only those abortions necessary to save a woman’s life.” See id. at 22.
64 Id. at 28.
65 Id. at 28-30.
66 Id. at 31.
67 Id. at 31-32.
68 Id. at 18 (Syllabus of opinion).
69 Id. at 19.
70 Id. at 32.
71 Id. at 31.
72 Ramsey County Court No. 62-CV-19-3868.
73 Doe v. State of Minnesota, Ramsey County Court No. 62-CV-19-3868, Memorandum, Parties and Claims (7/11/2022). Interestingly, the Republican-controlled Minnesota Senate tried to intervene, claiming (in apparent reference to Minnesota Attorney General Keith Ellison) that it was the “only institution in Minnesota that is able to defend the challenged statutes without conflict or qualification.” Id., Procedural Posture.
74 Doe v. State of Minnesota, Ramsey County Court No. 62-CV-19-3868, Memorandum, Introduction (7/11/2022).
75 Id., Standards of Review, Part IX. Judge Gilligan noted that “the Gomez decision and its essential holding is unaffected by the United States Supreme Court decision in Dobbs v. Jackson Women’s Health Org.....” Id., Part III.
76 Judge Gilligan analyzed Gomez at length at id., Standards of Review, Parts III-IV.
77 Id., The Challenged Laws.
78 “Ellison won’t appeal Minnesota abortion restrictions,” Associated Press, 7/29/2022.
79 The district court noted Franzese wishes to intervene “so he can appeal the Final Order, but not to contend that it was erroneous.” Rather, Franzese “seeks to assert a defense: 1) that has not been made in the case; 2) on which no discovery occurred; 3) which was never decided by this court; and 4) after judgment has been entered.” Franzese’s intervention attempt is based on the state’s failure to assert the lack-of-a-private-cause-of-action defense. “[T]hat [Pro-Life Action Ministries] and [Association for Government Accountability] attempted unsuccessfully to intervene to assert it, and that the… Court of Appeals affirmed this court’s decision on that intervention attempt” was known in 2020. Doe v. State of Minnesota, Ramsey County Court No. 62-CV-19-3868, Index # 382 at 5-6 (9/6/2022).
80 Id., Index #384.
81 Id., Index # 406.
82 Id., Index #386.
83 Id., Index #405.
84 Emergency Executive Order 22-16 by Minnesota Governor Tim Walz, signed 6/25/2022.
85 Minn. Stat., Const., Art. IX, §1.
86 59% of voters in Kansas, a more rightward-leaning state, voted on 8/2/2022 to reject an amendment that would have nullified any right to abortion under that state’s constitution. “Voters in Kansas decide to keep abortion legal in the state, rejecting an amendment,” National Public Radio, 8/3/2022. A recent poll of 800 Minnesota voters found that 55% of those polled felt that abortion should be legal in most or all cases, while 41% said it should be illegal in most cases. “Poll: Minnesotans split on overturning Roe v. Wade,” Minnesota Public Radio, 9/19/2022.