By Laura Hermer
The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Org.1 underscores the limited, conditional rights that women and others with a functioning uterus enjoy in the United States. Paternalistic state legislatures can now force women to gestate unintended and unwanted children, upending women’s futures and their families’ lives in the process.2
But that is not all. The Dobbs decision, along with other cases decided this term, heralds a major change in the Court’s substantive due process jurisprudence.3 The Dobbs Court adopted a traditionalist approach that considers only whether a practice was arguably protected in law as a right at the time that relevant constitutional provisions or amendments were ratified.4 In the case of Dobbs, the majority chose to examine selected laws and legal secondary sources ranging from the 13th century through the ratification of the 14th Amendment in 1868.
Using such an approach, it is no surprise that the Dobbs majority reached the decision it did. Many rights we take for granted now were not protected then. Married women had limited or no independent legal identity: In many states, they were not permitted to enter into binding contracts, own or control property, enter a profession, keep any wages they earned, or sue or be sued.5 Rather, their husbands had those rights.6 Enslaved African Americans had only just been freed, and Jim Crow laws were just around the corner. Interracial marriage was prohibited in some states.7 Sodomy was a crime in most states.8 Contraceptives were either unregulated under state law (just like pre-quickening abortion in many states, a status insufficient to be considered as part of a fundamental right by the Dobbs Court), or banned in the mail under federal law in 1873 as “obscene” and by many states soon thereafter.9 Anyone who thinks the present Supreme Court will not use this history to eliminate federal constitutional protection for other fundamental rights on which we now rely will likely be mistaken.
Fortunately, the Minnesota Constitution offers some protection against these predations. The Minnesota Supreme Court held in Doe v. Gomez that the right to privacy under our state constitution is broader than that under the federal constitution. It reasoned that:
Minnesota possesses a long tradition of affording persons on the periphery of society a greater measure of government protection and support than may be available elsewhere. This tradition is evident in legislative actions on behalf of the poor, the ill, the developmentally disabled and other persons largely without influence in society.10
It accordingly held that the state constitution not only implicitly protects the fundamental right of pregnant people to decide to keep or terminate a pregnancy without state interference, but also prevents the state from seeking to influence the pregnant person’s decision, for example, by paying for pregnancy care but not for abortion care.11
What now?
Now that Roe and Casey have been overturned, our state constitution unquestionably offers more expansive protection for Minnesotans’ right to an abortion under the right to privacy. Yet Minnesotans who care about retaining robust privacy rights may reasonably be concerned about ensuring the protection of their right to an abortion and other privacy rights over time. There is no guarantee that the Minnesota Supreme Court will not eventually fall victim to the sorts of compositional changes we have lately seen to both the U.S. Supreme Court and that of our neighbor to the south, Iowa, which itself recently overturned abortion-protective precedent.12
It would therefore be prudent to take additional steps to further secure all Minnesotans’ reproductive rights. One step would be to enact legislation expressly protecting these rights. The Protect Reproductive Options Act (the PRO Act, HF 259/SF 731), introduced in the 92nd Legislative Session, is a good example of what is needed. It would, if enacted, provide that “Every individual has a fundamental right to make autonomous decisions about the individual’s own reproductive health,” including the “fundamental” right to:
(1) choose or refuse reproductive health care;
(2) choose or refuse contraception or sterilization; and
(3) choose to continue a pregnancy and give birth to a child, or choose to obtain an abortion.13
It would prohibit the state from “deny[ing], restrict[ing] or interfer[ing]” with these rights.14 It would also, among other things, clarify that embryos and fetuses have no “independent rights” under Minnesota law.15
A more challenging but stronger approach, whether in addition to or in lieu of the latter, would be to seek a constitutional amendment protecting reproductive autonomy. Voters in California,16 Vermont,17 and Michigan18 are considering such amendments in the November 2022 election. While voters in Minnesota may be more divided on the issue of abortion than their counterparts in some other states, a clear majority still supports access to abortion under many circumstances, including during the first trimester.19
Minnesota lacks a referendum or ballot initiative process that would allow voters to bypass the Legislature, and to change this would itself require a constitutional amendment.20 Accordingly, both a statutory and a constitutional approach to protecting Minnesotans’ reproductive autonomy will require a functioning state legislature with a majority in both chambers willing to protect the liberties of their constituents. Such majorities currently do not exist.21
It is within the power of Minnesota voters to bring this into being through the ballot box. If voters are made aware of the need, and if they care sufficiently about these freedoms and how they impact their own lives and the lives of their families, neighbors, and communities, then perhaps they will act to do so.
Laura Hermer is a professor of law at Mitchell Hamline School of Law.
Notes
1 142 S.Ct. 2228, 2283 (2022).
2 See, e.g., Sarah McCammon, Indiana Becomes the First State to Approve an Abortion Ban Post-Roe, NPR (8/6/2022), https://www.npr.org/2022/08/06/1116132623/indiana-becomes-1st-state-to-approve-abortion-ban-post-roe (noting that the law bans all abortions, with limited exceptions for rape, incest, and lethal fetal anomalies); Diana Greene Foster, The Turnaway Study 169-70 (2020) (finding, overall, that 48 percent of women who obtained a wanted abortion both set and achieved one or more of their aspirational plans in the following year, as compared to only 30 percent of those who were denied a wanted abortion).
3 See, e.g., New York State Rifle & Pistol Assn v. Bruen, 142 S.Ct. 2111 (2022) (“To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command’”).
4 Cass R. Sunstein, Dobbs and the Travails of Due Process Traditionalism 4 (2022), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4145922
5 See, e.g., Bradwell v. State, 83 U.S. 130, 141 (1872) (Bradley, J., concurring) (“The harmony, not to say identity, of interest and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. So firmly fixed was this sentiment in the founders of the common law that it became a maxim of that system of jurisprudence that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state; and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most States. One of these is, that a married woman is incapable, without her husband’s consent, of making contracts which shall be binding on her or him…. The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator”); Bernie D. Jones, Revisiting the Married Women’s Property Acts: Recapturing Protection in the Face of Equality, 22 Am. U. J. Gender Soc. Pol’y & L. 91, 99-110 (2013) (discussing the spread and effects of state Married Women’s Property Acts).
6 See generally William Blackstone, Commentaries p. 430 (1765) (observing that “By marriage, the husband and wife are one person in law l : that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband : under whole wing, protection, and cover, she performs every thing ; and is therefore called in our law-French a feme-covert….”).
7 See, e.g., Scott v. Georgia, 9 Ga. 321 (1869) (noting that Georgia law “forever prohibits the marriage relation between the two races, and declares all such marriages null and void”); see also William Hardcastle Browne, Miscegenation, in Commentary on the Law of Divorce and Alimony (1890) (noting that 20 states voided interracial marriages).
8 See Bowers v. Hardwick, 478 U.S. 186, 193, n.6 (1986).
9 United States v. Bott, 24 F.Cas. 1204, 1204 (1873); Lanteen Laboratories, Inc. v. Clark, 13 N.E.2d 678, 681 (Ill.App. 1938) see also Linda Gordon, The Moral Property of Women: A History of Birth Control Politics in America 32 (2007).
10 Doe v. Gomez, 542 N.W.2d 17, 30 (Minn. 1995).
11 Doe, 542 N.W.2d at 31.
12 Planned Parenthood of the Heartland v. Reynolds, 975 N.W.2d 710, 740-44 (Iowa 2022) (overturning Planned Parenthood of the Heartland, Inc. v. Reynolds, 865 N.W.2d 252 (2018)).
13 HF 259, 92nd Leg. Sess. (Minn. 2021).
14 Id.
15 Id.
16 California State Constitutional Amendment Number 10 provides that “[t]he state shall not deny or interfere with an individual’s reproductive freedom in their most intimate decisions, which includes their fundamental right to choose to have an abortion and their fundamental right to choose or refuse contraceptives. This section is intended to further the constitutional right to privacy guaranteed by Section 1, and the constitutional right to not be denied equal protection guaranteed by Section 7. Nothing herein narrows or limits the right to privacy or equal protection.”
17 Mikalea Lefrak, Vermont to Vote on Whether to Amend the State’s Constitution to Protect Abortion, NPR (6/29/2022), https://www.npr.org/2022/06/29/1108710369/vermont-to-vote-on-whether-to-amend-the-states-constitution-to-protect-abortion. The amendment would provide: “That an individual’s right to personal reproductive autonomy is central to the liberty and dignity to determine one’s own life course and shall not be
denied or infringed unless justified by a compelling State interest achieved by the least restrictive means.” Proposal 5 as Adopted by the Senate (Vermont 2019), https://legislature.vermont.gov/Documents/2022/Docs/BILLS/PR0005/PR0005%20As%20adopted%20by%20the%20Senate%20Official.pdf.
18 Michigan Reproductive Freedom for All, Learn More (2022), https://mireproductivefreedom.org/learn-more/.
19 Greta Kaul, MinnPost Poll Reveals Two-Thirds of Minnesotans Oppose Ban on Abortions, MinnPost (6/14/2022), https://www.minnpost.com/data/2022/06/minnpost-poll-reveals-two-thirds-of-minnesotans-oppose-ban-on-abortions/.
20 Deborah K. McKnight, Initiative and Referendum, House Research Information Brief (1999), https://www.house.leg.state.mn.us/hrd/pubs/initref.pdf.
21 See, e.g., Walker Orenstein, Handful of DFLers Who Oppose Abortion Could Be Key to DFL Keeping MN House Control, MinnPost (7/18/2022), https://www.minnpost.com/elections/2022/07/handful-of-dflers-who-oppose-abortion-could-be-key-to-dfl-keeping-mn-house-control/.