If Roe Falls What Could Change for Minnesotans?

The United States Supreme Court could overturn or drastically weaken Roe v. Wade as early as June, leaving abortion access up to states for the first time in 50 years. Without federal protection, Minnesota law would not change. In 1995, the Supreme Court of Minnesota ruled that the state’s constitution protects the right to have an abortion before fetal viability, and to decide to have an abortion without government interference. Yet while Minnesota law will not change, the reality will.

Every state surrounding Minnesota has a pre- or post-Roe ban ready. North Dakota and South Dakota are poised with “trigger laws” that would immediately ban the procedure should Roe fall. In Iowa, a ban could take effect after six weeks of pregnancy if Roe is overturned. Michigan has a 1931 pre- Roe ban that would prohibit abortion in nearly all situations. Similarly, Wisconsin has a 172-year-old pre-Roe ban that could go into effect.

According to the most recent state data, of the 9,108 patients who received in-clinic abortions in Minnesota in 2020, 859 people came from out of state, and 548 came from Wisconsin alone. If surrounding states enact a ban, the Guttmacher Institute, a pro-choice research organization, reports that the total number of people traveling to Minnesota for care could increase by 370 percent.

“Clinics here are already booked up. It is hard to get an appointment as is and meet the demand for abortion care. There is a lot of work to do to build up the infrastructure to make sure that we are prepared if federal rights to abortion were to fall,” explains Megumi Rierson of Our Justice.

Our Justice is one of two organizations in Minnesota that provides direct financial and logistical support for people seeking abortion care in Minnesota, with funding primarily from individual donors. In March, 50 percent of Our Justice’s clients were traveling from other states. “More and more we have seen people coming from further out, [like] Nebraska and Texas,” Rierson says.

In preparation for a post-Roe future, Our Justice is increasing its capacity to provide transportation support because “you are going to see people needing assistance to pay for plane tickets.”

“We are expecting an influx,” adds Sharon Lau, Midwest Advocacy Director at Whole Woman’s Health (WWH) Alliance, a national nonprofit that operates clinics in a number of states, including one in Bloomington. “[In Minnesota] we have already been seeing an influx of patients from Texas due to the ban that has been in place since September.”

Lau adds that clinics also will have to contend with more out-of-state anti-abortion protesters if surrounding states ban, noting that WWH has been discussing increasing threats to staff and patient safety with the FBI. The National Abortion Federation reported a 125 increase in assault outside clinics from 2019 to 2020.

Expanding Access by Mail

In December, the FDA removed a rule that providers must distribute mifepristone to patients in person, meaning the abortion medication regimen can be mailed to those who undergo telemedicine via computer or phone. This is a less burdensome option for patients who live far from a clinic, cannot take time off to receive care, or face prolonged wait times. “Medication abortion is a lot more available now,” notes Julie Amaon of Just the Pill, a telemedicine medication abortion provider based in Minnesota and serving patients in Minnesota, Wyoming, Montana, and those who can travel there.

“We are preparing for the SCOTUS decision by expanding to states where we think abortion will still be an option and coordinating with funds and clinics where it will not be,” Amaon says, adding that more states could follow Missouri, where legislators are pushing laws that would penalize patients for crossing state lines.

Alarm Bells

Days after the Texas ban was passed, 54 Minnesota lawmakers formed the Reproductive Freedom Caucus in response to their growing concern about the accelerating threats to reproductive care across the country. The caucus is the first of its kind in the Minnesota legislature. “There has been a shying away from talking about reproductive health care [in the state legislature],” Representative Kelly Morrison (DFL-Deephaven) says, “and we felt that it was time to sound the alarm bells and alert people to the seriousness of the threat, and the reality of what is likely coming.”

The caucus broadly supports the concept of reproductive justice “where every Minnesotan has the right to choose to have a child or to choose to not have a child,” says Morrison, who practices as an OB/GYN in addition to serving in the legislature. “When abortion care is restricted, it endangers the lives of pregnant people and disproportionately endangers the lives of people of color, low-income people, and rural people. This is an equity issue, this is a reproductive justice issue, this is a human rights issue.”

Morrison co-authored two major bills the caucus is supporting. The Protect Reproductive Options Act (PRO Act) would establish the fundamental right of Minnesotans to make decisions about contraception, abortion, and pregnancy and prevent politicians from interfering in reproductive health care decisions. The act has been introduced, but it is unlikely to get out of committee this session.

The Patient’s Right to Know Act would ban physicians from giving patients medically inaccurate information. It would repeal the 2003 Women’s Right to Know Act, which mandates a script be read by a physician 24 hours before an abortion is performed — including medically inaccurate information such as a statement linking abortion to an increased risk of breast cancer. If patients miss that phone call, the waiting period starts over again, even if they have already made the trek to a clinic.

The Patient’s Right to Know Act was introduced last year; it is currently stalled in the House.

Morrison notes that neither the House nor the Senate have a pro-choice majority, which is in part why caucus-supported bills are stalled.

“If anti-choice majorities take over in our legislature and we have an anti-choice governor, make no mistake: bans will be enacted and challenged at our Supreme Court level,” Morrison says.

“The November election is going to be really important for people who care about reproductive rights in the state,” Laura Hermer, a professor of law at Mitchell Hamline School of Law, explains. “One could see a critical mass of anti-abortion legislators being elected. At the same time, the pro-choice candidates are absolutely going to use this to get out the vote.”

The Minnesota Supreme Court case Doe v. Gomez (1995) identified a right to abortion as a matter of right to privacy within the state constitution, but the state constitution itself does not clearly set forth that right. “So you have a derivative right,” Hermer explains. “When the justices of the state Supreme Court change, one could see a new challenge to the law.”

Hermer says there are other landmark U.S. Supreme Court cases couched in a right to privacy that could be challenged if Roe were to fall, including Obergefell v. Hodges (2015), which legalized gay marriage, and Lawrence v. Texas (2003), which ruled that criminal punishment for sodomy is unconstitutional.

“A lot of folks think this is just about abortion, but there is this whole tree [of court cases that understood] the right to privacy and liberty under the Fourteenth Amendment,” Hermer says.

A privacy framework was also used in rulings that impacted laws around access to contraceptives and the right to refuse lifesaving medical treatment. Laws restricting gender-affirming care are already being enacted in several states, and in a post-Roe America, they may become more common.

“If Roe is overturned, people will still be able to access gender-affirming care in Minnesota,” says Erin Maye Quade, advocacy director at Gender Justice, a legal and policy advocacy organization, “but it sets a bad precedent that the state can govern what kind of medical care people can access.”

“I would try to ban abortion.”

Between the end of the 2021 legislative session and April 2022, there have been 20 anti-abortion bills introduced in the Minnesota legislature, following a national uptick in restrictions. 2021 saw the most anti- abortion restrictions become law in the U.S. of any year since Roe v. Wade was decided.

In September, Representative Tim Miller (R-Prinsburg) introduced a “Heartbeat Bill” with a “bounty hunter” clause. In February, Senator Michelle Benson (R-Ham Lake) introduced a bill that would mandate medication abortion be taken in the presence of a physician under penalty of felony.

Benson is running in the 2022 Republican primary for governor. [Updated May 2, 2022: Senator Michelle Benson dropped out of the race for Minnesota governor on April 29, 2022.] Other leading GOP candidates have highlighted their support of a “Texas-style” ban, namely Senators Paul Gazelka (R-East Gull Lake) and Scott Jensen (R-Chaska), who told MPR News in March, “I would try to ban abortion.”

In February, Representative Erik Mortensen (R-Shakopee) introduced a bill to give embryos protection under the law, asserting that legal and constitutional rights “begin at conception.”

Hypothetically, if Roe falls and if the state legislature enacts a law asserting the legal rights of a fetus, “this right to privacy — the woman’s right to decide whether to carry a pregnancy to term — is going head to head with the right of this fetus to not be killed,” Hermer says. “Doe v. Gomez would likely fall in that circumstance. I would really, really worry about that.”

A Haven State?

There are eight abortion providers in Minnesota. Only three, including one mobile clinic, are located outside of the Twin Cities metro.

In 2019, Our Justice, the First Unitarian Society of Minneapolis, and two health care providers filed a lawsuit against the state of Minnesota arguing that restrictions in Minnesota — including the 24-hour waiting period and a requirement that minors must notify both parents regardless of estrangement or cases of incest (only two other states require a minor to notify both parents) — are forcing some Minnesotans to travel as far as Seattle to obtain timely care.

“I think that we are a state that people view as quite progressive on abortion rights because it is legal here,” Rierson says, “and yet there are over a dozen restrictions on abortion care that actively limit people’s access.”

Abortion is a time-sensitive procedure, and in clinic it can cost from $700 up to $1,700 in the second trimester. State Medicaid plans cover it, but providers are reimbursed well below cost. Those on MinnesotaCare, which provides coverage for low-income people, cannot get the procedure covered unless the pregnancy is life endangering or the result of rape or incest. Due to the Hyde Amendment, Indian Health Services cannot provide funding. Maye Quade says people in Minnesota mostly pay out of pocket. “We have examples of people selling their stove or missing a car payment in order to pay for their abortion.”

Often religiously affiliated and HIPAA non- compliant Crisis Pregnancy Centers (CPCs) outnumber abortion clinics by a margin of 11 to 1 in Minnesota. They conduct non-diagnostic ultrasounds that can be misdated — a “delay tactic,” Maye Quade says. “The people who are running these ultrasounds are not licensed to do so. They cannot determine if the fetus has low birth weight, or what its gestational age is. And they are receiving $3.5 million in taxpayer dollars per year to do this.”

Maye Quade says that the free prenatal care services CPCs claim to be providing are badly needed in Minnesota, but those services should come without religious counseling.

“It is not enough for abortion to be legal. People also need to live in a community where they are not going to get penalized for taking time off, stigmatized for having their abortion, and their kids are going to be cared for,” Rierson adds. “We cannot just focus on the single sentence in a law.”