It is the common messaging of Minnesota Republicans in the wake of the U.S. Supreme Court reversal of Roe v. Wade: They, not we, are outside the mainstream of where state and national voters are on the issue.
While polling shows strong support for abortion access, especially within the first three months of pregnancy, most Republican candidates support bans on the procedure — sometimes even if the pregnancy is the result of rape or incest or if the life and health of the mother is at risk. The GOP candidates for governor and attorney general oppose abortion and wouldn’t have won the party’s endorsement otherwise.
But statements issued after the federal court ruling, while endorsing the court action, attempted to flip the issue on Democrats.
“Minnesota values are not ‘up-to-the-moment-of-birth’ abortions as Tim Walz and Peggy Flanagan support,” said Republican-endorsed candidate for governor Scott Jensen.
“Although Keith Ellison embraces taxpayer funded abortion at any time of pregnancy and for any reason, most Minnesotans support limits on abortion,” said GOP endorsed candidate for attorney general Jim Schultz.
Is that true? Do Democrats Walz and Ellison support abortion at “any time for any reason?”
First, the easier question on taxpayer-funded abortion. The Minnesota Supreme Court ruled in the 1995 Doe v. Gomez case that state medical assistance must pay for abortions done for medical reasons, and most Democrats support that provision in their endorsement of legal access to abortion. Medical reasons is a different standard than for the life and health of the mother and has been interpreted to require state medical assistance funding for most abortions.
GOP-controlled legislatures have twice passed bills blocking state funding but both bills were vetoed by then-Gov. Mark Dayton.
In the annual report on abortions in Minnesota, the state Department of Health noted that of the 9,127 abortions performed on state residents in 2021, 4,602 were paid for via public assistance programs, the rest were either paid by private insurance (2,040) or paid for by the patient (2,474). In 11 cases, the source of funding is unknown.
But do the DFL incumbents support third trimester abortion “for any reason?” Both say they do not and neither of their political opponents produced evidence that they do or have supported no-restriction abortion.
In 2021, the state reported one abortion conducted on a woman who was between 25 and 30 weeks of gestation and MDH reported no abortions for women past the 30th week. In that same year, 93.6 percent of abortions in Minnesota were conducted at 15 weeks gestation or less.
Joel Hanson, the spokesperson for the Jensen campaign, attempted to support Jensen’s allegations by saying that Walz has described himself as a strong abortion rights congressman and governor, even joking at the 2018 DFL convention that “my record is so pro-choice, Nancy Pelosi asked me if I should tone it down.” Walz has also said he would oppose any additional restrictions on abortion in Minnesota.
Hanson noted that Walz voted yes on a 2018 GOP bill called the “Born Alive Abortion Survivors Protection Act” that called for medical steps to be taken if a baby survives a late-term abortion. He was one of six Democrats voting in favor. But Walz, then the 1st Congressional District congressman, immediately sent a notice to the House speaker — and tweeted on his congressional account — that his yes vote was a mistake and he had meant to vote no.
Current Minnesota law requires all but first trimester abortions be done in hospitals, and that a second doctor be available to respond to a live birth after a fetus could be viable.
Minnesota law does have restrictions on abortion access that have been challenged in court by advocates organized as Unrestrict Minnesota. That includes a 24-hour waiting period for abortions. Ellison, as attorney general, is defending the state law against the lawsuit. Walz said through a campaign spokesperson that he could not comment on the case because he is a named plaintiff.
Walz does not dispute his pro-abortion rights bona fides. When asked about the allegation by the Jensen campaign that he supports abortion at any time for any reason, Walz responded with some anger.
“No, I respect where (the) law is written now,” Walz said. “I have been in this office, I’ve done a thousand of these (press conferences) as a member of congress and as governor. Not one time have I ever said that. So again coming from someone who lied about the election, lied about COVID, is unvaccinated, hell, lied about a cabin I supposedly have … one putting into this debate is so disrespectful to providers, to women, to what the debate is about but I expect nothing different.
“I respect the law as it’s written now and as medical providers have defined,” Walz continued. “There is not, again, a single word of me ever saying so and I would ask all of you to find the research of how many of those there are, as opposed to 13 year olds being raped and asked to carry a pregnancy.”
Question over ‘viability’ standard
But saying he supports state law as written isn’t, in itself, definitive. State law establishes a standard that prohibits abortions when a fetus is potentially viable except when a mother’s life or health is in danger. That section of state law, however, was invalidated by a 1976 U.S. Court of Appeals decision known as Hodgson v. Lawson. That case struck down as unconstitutional the viability standard as written, as well as a law saying abortion to be performed “under circumstances which will reasonably assure the live birth and survival of the fetus.”
Still, abortion providers in Minnesota act as though the stricken statutes are still in effect and many abortion rights organizations list the viability standard as being in effect in Minnesota. “An abortion may be performed at or after viability only if the patient’s life or health is endangered,” says the Guttmacher Institute website.
The Unrestrict Minnesota lawsuit does not challenge the viability standard. An attorney for Gender Justice, Jess Braverman, said it wasn’t included in the suit because that provision was enjoined by the federal courts in 1976 and is not enforceable.
Doe v. Gomez, the 1995 state supreme court case that found protections for abortion under privacy provisions of the state constitution, used viability as the point when state restrictions could apply. But it didn’t impose that standard and the Legislature never enacted one post Doe.
The ‘PRO’ Act
Walz does support what’s known in the Legislature as the PRO Act, which aims to codify access to abortion and contraceptives into law as a backstop should Doe v. Gomez be overturned.
Ellison campaign spokesperson Faisa Ahmed said Ellison supports and will defend the legal precedent established in Doe v. Gomez. She said he also endorses the now-overturned standards in Roe and Planned Parenthood v. Casey, which “ensured the right to privacy to attain an abortion while also establishing viability as a threshold for state interest.” For abortions after 21 weeks of gestation, Ahmed said the incumbent “Would never want to limit doctors and patients who may need to perform or receive life-saving care.” Ellison supports the PRO Act.
“AG Ellison trusts women to make their own reproductive choices and his opponents do not,” Ahmed said. “That’s the issue. Opponents won’t be allowed to muddy the waters by making up fake stories about his positions.”
“It’s kind of a double layer of protection,” she said. The bill also says it applies to every state law, regulation and policy, meaning it could be read to potentially supersede any viability standard should it be passed into law.
But Morrison downplayed that, saying the measure is “silent” on the state’s enjoined viability standard limiting late-term abortions and does not attempt to change or remove it, Morrison said.
Morrison, a physician, did introduce a separate bill that would unwind some abortion restrictions, including nixing a requirement that a script detailing medical risks of abortion that Morrison said is medically inaccurate. But that bill doesn’t reference the viability standard either.
Minnesota is considered by advocates for abortion access to be a relatively restrictive state. Several have no time limits on when someone can have an abortion, including the politically similar Colorado.
Morrison said she does believe reproductive health care has to be individualized for every person and their circumstances. But she said the vast majority of abortions happen in the first trimester and the ones after are largely in “horrifically tragic situations” where either the mother is in danger or something has gone wrong in the pregnancy.
Abortion up to the moment of birth is “something that just doesn’t happen,” Morrison said, arguing Democrats are “very focused on making sure abortion remains legal,” rather than altering the viability standards. In 2021, Colorado reported 60 abortions after an estimated 24 weeks of gestation, which was 0.5 percent of the 11,580 total abortions reported. Nearly 75 percent of abortions there were at 8 weeks or less.
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