Important lessons from Minnesota's new abortion rights law
Elections have consequences.
By Lisa Needham
In the face of a lot of deeply bleak news about abortion rights, Minnesota has managed to carve out a tiny but encouraging bright spot.
Late last month, the Democratic state government trifecta used their newfound power to pass the PRO (Protecting Reproductive Options) Act. Signed into law by Democratic Gov. Tim Walz on January 31, the law protects the right to abortion in the state.
It’s short and light on details, but that’s OK. What it really is, at this stage, is a quickly-drawn line in the sand. It defines “reproductive health care” to include birth control, abortion, voluntary sterilization, family planning, fertility treatments, and improvements in maternal and natal health outcomes.
Reproductive health care is a continuum of services and should be treated as such by the law. By defining it broadly, the PRO Act also provides explicit protections for things like birth control. The religious right is already teeing up attacks on hormonal birth control, like the pill, intrauterine devices (IUDs), and emergency contraception. A law explicitly acknowledging a right to birth control is critical to stopping conservatives’ next moves.
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The law also establishes a fundamental right to bodily autonomy and to “use or refuse reproductive health care.” Real reproductive health justice requires honoring people’s choices, and that can just as easily include a decision to forego birth control. All of that falls under the umbrella of reproductive freedom. The law states that the Minnesota Constitution’s principles of “individual liberty, personal privacy, and equality” ensure that reproductive freedom is a fundamental right.
Finally, the law bars local governments — towns, cities, and counties — from restricting reproductive freedom. That’s good because a tiny Minnesota town already floated an ordinance that would let residents sue abortion providers and companies that provide abortion drugs via mail.
Checkmate, anti-choice conservatives
To be clear, passing this law is somewhat of a belt-and-suspenders approach for the state. Minnesota already had abortion protections that weren’t dependent on any federal court rulings. That’s because in 1995, the Minnesota Supreme Court, in Doe v. Gomez, held that the Minnesota state constitution offered broader abortion protections than the federal one.
So why the need for a new law? Frankly, because the composition of courts can change and conservatives have been good about ensuring that those changes tilt very hard right. That’s true not only at the United States Supreme Court level but also in state supreme courts.
For example, after the Iowa Supreme Court declared same-sex marriage legal in 2009, conservatives mounted a very successful campaign to get rid of those justices. In Minnesota, Eric Magnuson, who filed an amicus brief in Doe on behalf of one of Minnesota’s leading anti-choice groups, later became chief justice of the state Supreme Court. And, of course, at the federal level, conservatives succeeded in packing SCOTUS with religious hardliners who were always, inevitably, going to find a reason to toss out Roe v. Wade.
Minnesota’s Republican legislators tried to stop or significantly alter the bill, framing it as “the most extreme position on abortion on the world stage.” What that likely refers to is that the Minnesota law does not contain an arbitrary cutoff for when abortion care can be accessed. Conservatives offered a slew of unsuccessful amendments such as restricting abortions after 24 weeks. Abortions that late in pregnancy are already vanishingly rare. In 2021 in Minnesota, out of 10,136 abortions performed, literally one occurred in the third trimester, while over 90 percent occurred in the first trimester. Conservatives like to pretend that people are willy-nilly having last-minute abortions (or even giving birth and then having an abortion?!), but that’s just not a thing that happens except in their fevered brains.
Minnesota’s new law goes a long way toward protecting access but doesn’t go a long way toward expanding access. Simply declaring abortion is a fundamental right doesn’t fix the fact that only eight clinics in the state perform the procedure, and 61 percent of Minnesotans who can get pregnant live in a county where no clinic exists. A 2022 state court decision, the exceedingly-detailed 140-page-long Doe v. Minnesota, did overturn some of the state’s other restrictions, such as a ban on nurse practitioners providing abortion care, a mandatory 24-hour waiting period, mandatory anti-abortion “counseling,” and a requirement that minors notify both parents. An additional bill making its way through the state legislature would formally remove those restrictions from the state legal code.
All of these moves have made Minnesota what some are calling an “access island.” The state is surrounded by states where no abortion care is available — Wisconsin and South Dakota — and states where abortion care is highly restricted — North Dakota and Iowa. But for Minnesota to truly provide for people from across the region, capacity has to increase dramatically.
Since the Dobbs decision, Planned Parenthood has seen a 150 percent uptick in calls and a 13 percent increase in patients in its Minnesota clinics. Whole Women’s Health, another abortion provider, reported a 50 percent increase in patients. Thanks to the Doe decision, nurse practitioners and physician assistants are no longer prohibited from performing abortions, and reproductive health groups in the state are working on getting those practitioners up to speed.
Minnesota shows the way for other blue states
It’s important to note that Minnesota’s success in this arena was thanks to a fortunate convergence of events. There’s an existing state court decision finding a right to an abortion under the state constitution. Democrats currently hold the trifecta of the state House, Senate, and governor’s mansion. (Dems won the Senate last November, giving them all three for the first time in a decade). Not every state is going to have those advantages.
However, Minnesota’s success shows that the path forward post-Roe is at the state level, whether through state courts, state legislatures, or both. Federal legislation isn’t possible right now, with the Republicans holding the House and some Democrats in the Senate being wobbly on abortion rights (looking at you, Joe Manchin). Going through federal courts is a fool’s errand. One lone Trump appointee may soon wipe out access to one of the drugs used in medication abortions. Even when there’s a bright spot, such as a DC federal judge finding that the 13th Amendment, which prohibits involuntary servitude, may protect abortion, any federal case ultimately runs into the buzzsaw of the extremely anti-choice Supreme Court.
There are 17 states with a Democratic trifecta right now. Each of those states is an opportunity to pass comprehensive abortion rights protections. Minnesota’s law serves as a useful model for getting something quick yet extensive on the books — protect all aspects of reproductive health care, declare the right to reproductive freedom fundamental and, if possible, tie it to the state constitution, and ensure that local governments cannot override the right to an abortion.
That’s phase one, and honestly, that’s the easy part. Phase two, where Minnesota is right now, is to do the difficult work of eradicating abortion restrictions like waiting periods and increasing the number of clinics and providers. It’s a long, hard road, but it’s now the only one we’ve got.