Legal access to abortion is unchanged in Minnesota after the overturning of Roe v. Wade last week by the U.S. Supreme Court because of protections in state law and the state constitution.
“If Scott Jensen has his way, Minnesota would become one of the most anti-choice states in the nation,” Gov. Tim Walz told reporters at the Capitol on Tuesday, referencing the leading Republican candidate for the state’s top office.
Any legislation significantly curtailing existing abortion access would likely fail if Walz is reelected or if Democrats are in control the state House or Senate next year. But if Republicans win full control of state government, the political picture would be different and abortion foes would have more power.
On the campaign trail, Jensen has called for sweeping restrictions on abortion while acknowledging state abortion protections that would need to be overturned to achieve his goal. GOP leaders in the House and Senate have been less clear on what their agenda might be and how exactly they might seek to curtail abortion access.
How Jensen might respond to Roe
Minnesota has some legal restrictions on abortion, including a 24-hour waiting period. State law says abortion is only allowed before a fetus is viable outside the womb, which is somewhere around 24 weeks of gestation, in the second trimester. But there is an exemption for cases in which a physician says abortion is necessary to “preserve the life or health of the pregnant woman.” In 2020, about 70 percent of abortions occured fewer than nine weeks into a pregnancy, while 99 percent were estimated to have happened before the 24-week mark.
Those state laws are backed by a constitutional right to abortion, however, outlined by the state Supreme Court in a 1995 case. In Doe v. Gomez, the state court also went further than the U.S. Supreme Court under Roe, ruling low-income women on medical assistance could get coverage for abortion.
In his campaign for governor, Jensen has offered a variety of stances on his approach to abortion access.
In March, before Roe was overturned, Jensen told MPR News he would “try to ban abortion” if elected governor. And in a May interview on WCCO radio, Jensen, a practicing family physician, said he wouldn’t support exemptions for rape and incest, though he might allow abortion in “protection of a mother’s life.”
“If a mother’s life is in danger I would think that would have to be a medical consideration and an area for potential exception,” Jensen told WCCO.
Yet after Roe was reversed last week, Jensen issued a written statement acknowledging the right to abortion outlined by Minnesota’s Supreme Court. The statement did not call for challenging that ruling in an effort to ban most abortions, which would require either the court overturning its earlier ruling — unlikely with the current makeup of the bench — or by passing a constitutional amendment.
A simple majority of state lawmakers can ask voters to reject or ratify an amendment to the state constitution. Those ballot questions need a majority of all people voting to pass.
In the new statement, Jensen also didn’t outline what, if any, abortion limits he might push for as governor. He instead said he would “seek out loving and caring alternatives like universal adoption, family planning measures to prevent pregnancies and policies like counseling and alternative referrals, medical assistance and other measures that value people — both born and unborn.”
And in a video published Tuesday, Jensen said “rape and incest as considerations would fall within the realm of ‘is the mother’s life in danger.’”
Jensen said a mother’s life can be endangered “quite readily without us seeing it,” such as if she’s having suicidal ideations.
“Rather than have a pregnant mom with an unexpected unplanned pregnancy have to demonstrate or prove that there’s rape or incest involved, I think that person should be interfacing with their doctor and they make the decision whether or not this is, if you will, jeopardizing mom’s life,” Jensen said.
Legislative Republicans
Republican leaders at the Legislature haven’t offered much of a roadmap for how they would address abortion if in power. The GOP currently controls the state Senate while the DFL holds a majority in the Minnesota House. But that could change in the fall midterm elections, which often go poorly for the party of the president.
Last year, House Republicans introduced bills to limit state health programs from paying for abortion. They also sought to impose new licensure requirements on abortion clinics and ban abortions after what they describe as a “fetal heartbeat” is detected in a fetus or an embryo.
Supporters of heartbeat laws usually say a “fetal heartbeat” is detected around six weeks, though medical experts say the term can be misleading and that while there may be cardiac activity, the heart isn’t fully developed until later in the pregnancy. An audible sound around six weeks is actually created by ultrasound machines.
Rep. Tim Miller, an outgoing legislator from Prinsburg who is part of the breakaway New House Republican Caucus, introduced a “fetal heartbeat” bill earlier this year modeled after a law passed in Texas. Under the plan, anyone could bring a civil lawsuit against a person who performs what would be an illegal abortion under the proposal, or who abets such an abortion.
Senate Republicans, meanwhile, have also not outlined an exact agenda for abortion restrictions.
Senate Majority Leader Jeremy Miller, a Republican from Winona, said in a statement after the decision overturning Roe that his caucus is “committed to working together to find consensus on protections for babies, and support for moms and families who choose life.” Miller has not detailed what the GOP hopes that consensus looks like, though it might depend on the views of individual lawmakers elected this fall.
It also might not be politically advantageous for Republican leaders to outline specifics about how they might address abortion before the fall election given the popularity of abortion rights in much of the state.
Still, when the draft opinion in the federal case was leaked in early May, Benson also said the Legislature would need to find consensus on any abortion laws because they need approval of the House, Senate and governor’s office. Benson said the Doe ruling provides an “extra step” to major abortion limitations that would require either more conservative judges or voters to approve a constitutional amendment.
“If we’re going to move to be a more pro life Minnesota there will have to be some changes in our judiciary,” Benson said.
“It’s nothing that could happen fast,” Utke said of legal challenges.
Walz warns of fast action
Still, Walz contends that a change in the judiciary could, in fact, happen rather quickly. At his news conference, the governor said three of the seven Minnesota Supreme Court justices will soon reach the 70-year-old age limit requiring retirement, meaning the balance of the court could shift under Walz’s second term — or Jensen’s first one.
But Walz spokeswoman Claire Lancaster later said only two judges are nearing that mandatory retirement, and just one will hit the age limit during the next four-year governor’s term. Justice Barry Anderson will reach mandatory retirement age in October of 2024 and Natalie Hudson in 2027. Judges can always voluntarily retire before they reach age 70.
The governor nevertheless argued it would be naive to believe Republicans won’t find a way to act quickly on abortion, or to evade or challenge state law or constitutional abortion access protections.
“Abortion is legal in Minnesota but that could change in November,” he said.
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