Abortion Rights in Minnesota Without Roe v. Wade: It's Not as Secure as Some Think

 

The leaked draft opinion in Dobbs v. Jackson’s Women’s Health Organization portends the US Supreme

Court will overturn  Roe v. Wade and women’s  right to terminate their pregnancies.  The opinion declares that it will be up to states and the political process to decide abortion rights.  Some in Minnesota declare were Roe overturned one need not worry because abortion rights are independently protected in the state.  Think again.  Such complacency regarding abortion rights by  its defenders  in thinking that Roe was the final word could also doom  similar rights protected under Minnesota law.

 

Roe v. Dobbs

            Roe v Wade is the 1973 Supreme Court opinion declaring that a constitutional right to privacy protects a woman’s right to terminate a pregnancy.  In reaching that conclusion the Court  built its decision off of previous  decisions. While nowhere explicitly in the Constitution can one find a right to privacy., in cases such as Griswold v. Connecticut the Court ruled that such a right is implicit in the Third, Fourth, Fifth, Ninth and Fourteenth Amendments.

            Roe expanded the right to privacy to include the right of women to terminate their pregnancies.  Yet that right was not absolute and it could be regulated or limited by a compelling state interest.  Protecting the rights of the fetus was not such an interest because the Court ruled that an unborn entity was not a person  according to the Constitution.  But protecting maternal  health was  a legitimate interest.

            Over the years those opposed to abortion have sought various ways to overturn abortion rights.  The have exploited  the maternal health  loophole to place limits on where and when abortions could be performed.  The Supreme Court has upheld many of these regulations but also struck down many.  For abortion rights advocates, they could always count on the US Supreme Court would come to their defense.   This was the case even in the 1991 Planned Parenthood v Casey decision where the Supreme Court reaffirmed Roe.

            The draft opinion in Dobbs v. Jackson’s Women’s Health Organization suggests that a nearly fifty-year political mobilization by those who are opposed to abortion rights has paid off.  The draft suggests Roe will be overturned and it will not be up to the states and the political process to decide what abortion rights, if any, women will have.  The opinion said that they will review any regulation of abortion  under what is called a rational basis test.  This means a broad presumption of constitutionality for abortion limits, even in cases of rape, incest, or the health of the mother.

            Dobbs is a complete reversal of  Roe. But it is only a draft.  It is still possible the Court sill not formally overturn Roe but merely gut it, saying it remains valid law but still allow for many more limits on abortion.

 

Gomez v. Roe

            Were Roe overturned or abortion rights significantly limited the focus turns to the states.  Some are prepared to ban abortion others have laws or rules in place to protect abortion rights.  In theory Minnesota has such protections too, but the legal safeguards for abortion in the state are more tenuous than one might think.

            As it was true at the federal level, there is no explicit right to abortion found in the Minnesota Constitution.  The basis for abortion rights is found in a  1995 Minnesota Supreme court decision Women of the State of Minnesota v. Gomez.  At issue in that case was a state law that restricted the use of public funds for abortion-related medical services to three limited circumstances while permitting the use of such funds for comprehensive childbirth-related medical services. Here the Court ruled that providing public funds to pay for maternity costs but not abortions violated the rights or poor women.

            But in reaching that conclusion the Court, also building upon previous right to privacy cases, contending that fundamental right of privacy under Article I, Sections 2, 7 and 10 of the Minnesota Constitution includes the right of a women to choose to have an abortion.  Moreover, critical to the Minnesota Supreme Court reaching that decision was that the State of Minnesota, specifically the Attorney General, had conceded that such a right exists.

            Thus, the right to privacy protects right of women to terminate pregnancy but the case law never said it was absolute and this case was decided within the conduct of public funding for abortions.  Gomez,  was decided by a very liberal Minnesota Supreme Court which conceded at the time that its ruling was very limited.  All of this is important  because the right to abortion in Minnesota  under Gomez parallels that under the US Constitution in Roe in that both were judicially crafted rights constructed through  judicially crafted  rights to privacy. 

 

Gomez v. Dobbs

            As we are seeing with Roe and Dobbs, abortion rights under Gomez could be vulnerable in many ways.

            One, without a federal  right to abortion, a state right is less protected.  A future Congress and president could  pass a law making abortion illegal.  Based on the Dobbs draft opinion, a future Supreme Court could declare a fetus a constitutional person with rights and therefore Gomez decision could effectively be overturned at the  federal level.  Or maybe as a result of political mobilization the state passes such a law and the Minnesota Supreme Court has to decide how to resolve  the rights of a mother versus her fetus.

            Consider other possibilities.  A future governor and state legislature pass a law banning abortion and such a law is litigated before a Minnesota Supreme Court less supportive of such a right. While at present the Minnesota Supreme Court  may look pro-choice, it would not take much time over several elections to replace them with those who oppose abortion.  Several years ago in Iowa after its Supreme Court ruled that its constitution protected the rights of same-sex couples to marry, those opposed to the decision  successfully replaced several of the justices in elections.

           Or think of a future attorney general unwilling to defend abortion rights as was the case in Gomez.  Or consider  a possible future constitutional amendment.  The point is that Gomez maybe a temporary firewall for abortion rights, a concerted political mobilization movement by groups such as Minnesota Citizens Concerned for Life could easily destroy such a right.

          Abortion rights advocates should not be so complacent in thinking that Minnesota is safe no matter what the Supreme Court does or what a final version of Dobbs is.  Complacency is why  we are where we are today at the federal level, and the same fate could befall Minnesota.