MINNEAPOLIS — Abortions remain a legally protected right in Minnesota — but it just became a politically hotter issue for this fall’s elections.
Legally speaking, Friday’s decision by the U.S. Supreme Court to overturn the 50-year-old case of Roe v. Wade means little inside the borders of Minnesota.
That’s because the Minnesota Supreme Court has ruled that banning abortions outright would violate a woman’s “fundamental right of privacy” under the Minnesota Constitution. The decision, known as Doe v. Gomez, was issued in 1995 and struck down a state restriction on public funds for the poor being used to fund births but not abortions.
The current make-up of Minnesota’s highest court — most appointees of Democratic governors — make it unlikely to reverse itself any time soon.
The current make-up of the state’s highest elected officials also make it unlikely anything will change in Minnesota right now.
Earlier this week, Attorney General Keith Ellison, a Democrat, vowed to make Minnesota a sort of safe haven for anyone seeking abortions, including pregnant people traveling from other states.
Minnesota’s Planned Parenthood leader has said she expects to see an influx of women from other states where abortion is now or will soon be outlawed.
Abortions became illegal in Wisconsin and South Dakota Friday.
In Wisconsin, a law outlawing abortions remains on the books. It had been rendered unenforceable under Roe, but now it’s in effect.
South Dakota’s prompt outlawing of abortions is the result of a so-called “trigger law” that outlawed the practice the moment the U.S. Supreme Court ruling came down.
North Dakota will outlaw abortions in a month, according to a state law that can now go into effect.
Abortions are still allowed in Iowa, but last week the Iowa Supreme Court overturned its precedent protecting abortions. That means that the state’s Republican-controlled legislature and Republican governor could ban the practice.
Minnesota’s Gomez decision is powerful because the U.S. Supreme Court’s new decision, known as Dobbs, doesn’t say there cannot be any bans on abortion; rather, the Court ruled 6-3 that the U.S. Constitution doesn’t protect abortions, and thus, it’s up to each state how to regulate it via its own laws and constitution.
But that’s not a forever guarantee — and defenders of abortion access will no longer have the nation’s highest court as a backstop.
Enter the politics of abortion.
When the decision came down Friday, elected officials, candidates and political groups of all stripes blasted out statements and fundraising emails.
Democrats, fearing headwinds during the national midterm elections amid high inflation and an unpopular president, see the potential to mobilize voters and raise money over fears of abortion crackdowns.
“The governor’s office is now the last line of defense against an abortion ban in Minnesota,” Gov. Tim Walz said in a campaign email.
The statement isn’t entirely correct.
The most obvious way for abortions to become illegal in Minnesota would be a parallel path that took the U.S. Supreme Court to this point: changes in the court’s make-up.
Like the U.S. Constitution, the Minnesota Constitution never mentions the word “abortion” or even the word “privacy.” So it’s possible a future court could decide the Gomez decision was wrongly interpreted — just like the U.S. Supreme Court decided that Roe was wrong.
In Minnesota, justices are most often appointed by the governor because that’s what happens when they retired in the middle of their six-year terms, but each must stand for re-election if they wish to remain in office before the mandatory retirement age of 70.
Thus far in Minnesota, the technically nonpartisan elections of state Supreme Court justices have rarely seen heated partisan dynamics over issues like abortion. It remains to be seen whether that could change.
This fall, two justices will on the ballot: Natalie Hudson, who was appointed by former Gov. Mark Dayton, and Gordon Moore, who was appointed by Walz. Both are unopposed.
Any changes to the court’s current 5-2 makeup (based on the party of the governor who originally appointed them) would have to be the result of a long game, most likely centered around a Republican governor appointing justices who would uphold abortion restrictions passed by a Republican-controlled Legislature.
For voters in the race for governor, the abortion question is simple.
“I would try to ban abortion,” Scott Jensen, the presumptive Republican nominee, has said.
Jensen’s running mate, former NFL player Matt Birk, also opposes abortions.
On the DFL side, Gov. Tim Walz and Lt. Gov. Peggy Flanagan, who are both running for re-election, want to continue to allow abortions.
The other statewide office that could have a hand in abortion law — the attorney general’s race, also offers a clear contrast. Ellison supports abortion access, while his two Republican challengers do not.
Jim Schultz, the Republican-endorsed candidate, opposes abortions and on Friday accused Ellison of holding an “extreme pro-abortion stance.” In the August Republican primary — absentee voting began Friday — Schultz will face Doug Wardlow, who is also opposed to abortions.
