Legal fight opens over state abortion restrictions

Published 4:33 pm Thursday, October 31, 2019

By Brian Bakst

MPR News/90.1 FM

A unique legal challenge attempting to wipe a slate of Minnesota abortion laws off the books has had its first day in court Wednesday — the opening salvo in a case almost certain to take many months, if not years, to ultimately decide.

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Groups that brought the case urged a Ramsey County District Court judge to let the fight move ahead, while state attorneys argued that it should be tossed at the start.

Judge Thomas Gilligan lobbed plenty of questions at attorneys on both sides but indicated he would take time to issue an initial ruling.

The complex case has already put some Democratic leaders in an awkward spot. Attorney General Keith Ellison, a DFLer and abortion rights supporter, dispatched lawyers from his office to argue to dismiss the case; he’s said previously that he’s duty-bound to defend state laws.

The coalition behind the lawsuit rallied in below-freezing air outside the courthouse as key players laid out the reason for the sweeping case.

“Minnesota’s abortion restrictions are medically unnecessary and legally untenable,” said Megan Peterson, executive director of Gender Justice. It’s involved in the fight to cancel more than a dozen abortion restrictions in one legal swoop.

The case is rooted in a belief that current laws go too far in dictating how abortion providers consult with patients, what women must do before undergoing the procedure and what must happen after the fact to notify the state and dispense with fetal tissue.

The Minnesota restrictions run afoul of a landmark ruling by the state’s top court, Peterson said

“In 1995, these basic rights to privacy and personal decision-making were upheld by the Minnesota Supreme Court in the case Doe v. Gomez,” she said. “And yet, anti-abortion politicians have been quietly chipping away at our rights for years.”

The strategy of trying to take down so many laws at once is unusual. In most states, groups favoring abortion rights have gone to court to challenge laws one at a time, just after they’ve passed. And typically, federal courts are the ones asked to weigh in.

Pepis Rodriguez said the prior Minnesota Supreme Court ruling makes the venue here the proper one.

“Because Minnesota protects the right to an abortion so strongly it makes sense to move forward under the Minnesota Constitution rather than the federal standard,” he said.

Solicitor General Liz Kramer asked Judge Gilligan to dismiss the case on several procedural grounds. She conveyed to Gilligan how unique this tussle is.

“One of the things that makes this case different than every other abortion case cited by the parties is how long these statutes have been on the books. The plaintiffs have challenged 13 different statutes,” she said after the hearing. “They have been in effect for between 11 and 111 years.”

Kramer said people who bring lawsuits must show concrete harm as the result of a defendant’s action. The doctor, midwife, church and other groups who filed the case failed in that regard, she said.

If allowed to move forward, Kramer said, it would create a troublesome precedent.

“It would be akin to saying that any environmental activists could come and challenge all the environmental statutes on the books,” she said. “That would be impractical for our court system.”

Rodriguez said it would be a mistake to end the case at this stage before the merits of the laws can be discussed.

“The state simply wants to avoid facing the truth in court that these restrictions place ideology over health care, over individual rights and over human dignity,” he said.

Besides Ellison, DFL Gov. Tim Walz and a few state agencies are also named as defendants. Kramer said the legal focus is in the wrong place because neither state official directly enforces state abortion laws.

Groups opposed to legal abortion are attempting to intervene with their own lawyer. That process will delay a ruling by the judge until December or later on whether the case is dismissed or moves to the next phase.

Even then, both sides agree that a final outcome is probably years and many appeals away.

Rep. Tim Miller, R-Prinsburg, who has sponsored many bills to restrict abortions, sat through the two-hour hearing.

Miller said the case has the makings of a watershed case, especially if existing laws are undone.

“I am a life advocate, and I believe that this is moving us in a direction that we won’t even have a say in this, that there will be unrestricted abortions in the state of Minnesota through birth.”

Miller said he had worries about the fight Ellison’s office would put up, but his concerns were allayed some.

“The arguments that have been in there so far for the motions to essentially dismiss have been rigorous,” he said. “I give them credit for that.”