Minnesota judge strikes down abortion restrictions

ST. PAUL, Minn. (CN) — A district court judge declared a slate of Minnesota laws restricting abortions unconstitutional Monday morning, finding that the state’s constitutional protection of abortion prevented it from requiring minors to notify their parents or forcing patients to undergo a waiting period before getting an abortion.

The 140-page ruling, issued by Ramsey County District Court Judge Thomas Gilligan in a case brought by abortion providers and advocates in 2019, invalidates a number of state laws which Gilligan found restricted Minnesotans’ constitutional right to abortions, established by the state’s high court in the 1995 case Doe v. Gomez. 

Gomez, Gilligan wrote, established that the Minnesota Constitution’s guaranteed right to privacy granted Minnesotans greater privacy rights than under the U.S. Constitution and that those rights meant that “the difficult decision whether to obtain a therapeutic abortion will not be made by the government, but will be left to the woman and her doctor.” 

In recognizing Gomez, Gilligan glanced askew at the U.S. Supreme Court’s recent decision in Dobbs v. Jackson Women’s Health, which removed the constitutional right to abortion created by Roe v. Wade in 1973.

“Unlike the Dobbs Court, which threw out nearly fifty years of precedent, this court must respect the precedent set by the Minnesota Supreme Court in Gomez,” he wrote. “That precedent will guide the court’s decisions in this case.” 

Among the challenged rules was what Gilligan called the “physician-only law" – which requires that abortion care be provided only by physicians and cuts out clinical nurse specialists, certified nurse practitioners, certified nurse midwifes and physician assistants – in addition to the “hospitalization law,” which requires that any abortions after the first trimester be conducted in a hospital or licensed abortion facility, for which no licensure mechanism currently exists. 

The judge also invalidated rules requiring providers to alert both of a minor’s parents 48 hours before performing an abortion and to tell would-be abortion patients about the possible risks of receiving abortions, the gestational age of the fetus being aborted and whether anesthetic or analgesics would “eliminate or alleviate organic pain to the unborn child” at least 24 hours before the abortion as part of the informed consent process, along with informing them that fathers are liable for child support, that medical assistance benefits might be available to the patient and that the patient can examine information provided by the Department of Health on abortions. 

“The current information in the Health Department’s informational booklet,” Gilligan noted, “contradicts the information included in the Mandatory Disclosure Law.” The law, for instance, required doctors to warn of a risk of breast cancer, which the booklet said was not supported by research. 

“Only be reading these paragraphs in full, and not simply skimming them, would a patient understand some– but not all — risks listed are not shown to be associated with abortion,” the judge wrote. “This ultimately has the effect of creating a confusing and misleading handout.” 

Several reporting laws, which require reports of abortions and abortion-related complications to the state health commissioner for publication in an annual report, survived. 

Gilligan also found that the imposition of felony penalties for violations of the restrictions, including the reporting laws, create a chilling effect on abortion providers and restrict care.

“The felony penalties are a structural government disincentive to provide abortion care,” he wrote. “The felony penalties, therefore, infringe on the fundamental right to abortion access.” 

At a press conference held Monday afternoon, the plaintiffs’ attorneys and several other supporters celebrated the ruling. “We believe that the decision that the District Court issued today is correct,” Stephanie Toti of The Lawyering Project said. Toti was among the attorneys representing the plaintiffs. “Correct on the substance and correct on the constitutional principles.”

“Restrictions on abortion care not only make essential health care financially and logistically inaccessible, they also disproportionately impact people of color, people with low incomes, queer and trans people who reach out to our abortion assistance fund,” Shayla Walker, executive director of the abortion fund Our Justice, said in a statement. “In light of the Supreme Court overturning Roe v. Wade, every piece of red tape matters for Minnesotans and people traveling to Minnesota for abortion care.” 

At the conference, Walker said that the ruling would ease substantial burdens on Minnesota’s abortion providers, who are already facing increased demand as neighboring states ban or severely restrict abortions. 

Asked whether she believed Attorney General Keith Ellison, a vocally pro-abortion rights Democrat, would pursue an appeal, Toti declined to speculate. “It may well be that the state decides to go forward with an appeal, and we’ll be prepared to respond, but that’s ultimately the decision of the state,” she said. 

Ellison himself said that his office had not yet made a decision on whether to appeal. “I believe in a woman’s right to choose. I also have the duty to defend Minnesota statutes,” he told the Minneapolis Star Tribune.

“We’re taking a good strong look at the decision,” Ellison said, adding that he didn’t believe that he was “duty-bound” to appeal. 

Teresa Collett, who heads the Pro-Life Center at Minneapolis’ University of St. Thomas School of Law, decried the decision Monday and said she was skeptical that Ellison had adequately represented the state’s interest. 

“In this case, we have a strong supporter of abortion tasked with defending restrictions on abortion,” she said of Ellison. “He himself has said that he favors unrestricted rights to abortion.” 

Collett said she had represented the Republican-majority Minnesota Senate in an effort to intervene in the case, but was rebuffed by Gilligan. “The trial court judge kept assuring everyone that not only would the attorney general do a good job, but that it would appear to be a fair trial,” she said. 

Collette said she was no fan of that ruling or of Monday’s.

“I think it’s a misreading of Doe v. Gomez, but I think Doe v. Gomez was a misinterpretation of the Constitution,” she said, noting that the Minnesota attorney general also had not disputed Gomez’s holding of a constitutional right to abortion. While the Dobbs decision has no impact on interpretations of the Minnesota Constitution, she added, “maybe that’s the relevance of Dobbs, because Dobbs… says ‘is it in the text? No. Is it part of the long legal history in this country? No. Then we leave it to the people.’”

Ellison has 60 days to decide whether to appeal the decision. 

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