The debate over abortion has mostly focused on the issue of access. This has been absolutely critical, given that SCOTUS’s Dobbs ruling last year removed federal constitutional protection for abortion.
But now that the PRO Act has been enacted, our work to secure reproductive freedom for all Minnesotans is not finished. The larger debate over abortion must include at least two additional conversations: The act of sex that is part of nearly any timeline in an abortion, and how abortion is regulated as a medical or surgical procedure.
Fortunately, an important proposal at the Minnesota Capitol, HF91, addresses both of these issues.
First, the bill would repeal antiquated laws criminalizing certain sex acts. While it might come as little surprise to most of us, University of Texas-Austin professor, Cindy Meston, and colleagues found that people most often have sex because they’re physically attracted to their partner, they want to show affection and sex feels good. But there were many additional reasons, like wanting to please their partner, wanting to make up after a fight, and wanting to feel loved, among others.
Among the least-cited reasons was procreation. Only rarely do most people have sex with an intent to procreate. Indeed, while sex is a basic, recurring human need for most adults and one important part of our existence, the average American family has only two or fewer children.
As a society we’ve become much more open and accepting of the fundamental role that sex plays in many of our lives. Our laws, however, have not kept pace. For example, Minnesota still has a law criminalizing fornication on the books. The Minnesota Supreme Court cited this law in a 1990 case holding that a landlord didn’t violate the state’s Human Rights Act by refusing to rent to a single woman whom he believed would fornicate there with her fiancé.
Minnesota’s sodomy statute also remains on the books. It is likely that both it and the fornication statute are unenforceable because of a U.S. Supreme Court case that struck down a Texas statute criminalizing sodomy, holding that “[t]he Texas statute furthers no legitimate state interest which can justify its intrusion in to the personal and private life of the individual.”
The Minnesota bill would repeal both statutes, among others.
Second, it would repeal abortion laws that have been held unconstitutional over time or that regulate the procedure differently than other health care procedures.
Why should we bother to repeal unconstitutional or otherwise unenforceable laws? Recent events should make that plainly apparent. After Roe v. Wade was decided, many states left their old, pre-Roe abortion bans on the books. In some states, including Wisconsin, parties are fighting over whether the pre-Roe ban sprang back into effect after the Supreme Court overturned Roe last year, or whether that ban had been permanently invalidated and the present Wisconsin legislature must enact a new abortion ban, should it choose to do so.
If we in Minnesota repeal our antiquated, unconstitutional, and unnecessary laws, we won’t risk this uncertainty. Abortion restrictions do nothing other than single the procedure out in people’s minds, making it seem unusual and in need of regulation. In the states like Colorado and Oregon that treat abortion like any other health care procedure, abortions are performed under similar circumstances to most other locations. In fact, the abortion rate in these states is lower than in many other states. Moreover, while slightly more abortions are performed there after 21 weeks’ gestation than in other states (e.g., 1.6% of abortions in Oregon versus 0.9% nationally), this is likely due in part from people coming from out-of-state to access necessary abortion care.
The bill would bring our laws into the 21st century. In so doing, it would protect our freedom to determine the most fundamental features of our private lives from the predations of those who want to impose their own religious and moral views on the rest of us. The legislature should enact HF91.
Laura Hermer is a professor of Law at Mitchell Hamline School of Law.
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