Abortion will be on the minds of Minnesota voters, UMN law professor says

People gather in a group for a rally outside.
Thousands of abortion rights supporters gather outside St. Paul College before marching to the Minnesota State Capitol on July 17.
Tim Evans for MPR News

Minnesota voters won’t see specific questions around abortion next month when they go to the polls, but the issue is still likely to galvanize supporters and opponents as they pick candidates for the Legislature and the governor’s office.

The U.S. Supreme Court’s decision to overturn Roe v. Wade this year ended a national right to abortion. The Minnesota Supreme Court ruled nearly 30 years ago that the state constitution guarantees a legal right to abortion — but that could also be changed, University of Minnesota Law School professor Jill Hasday said Monday on the MPR News program Minnesota Now.

A future governor could stack the Minnesota high court with justices who oppose legal abortion and who might be willing to overturn Doe v. Gomez, the 1995 state ruling that found a constitutional right to abortion in Minnesota, Hasday told MPR News host Cathy Wurzer.

A governor could also spearhead legislation to amend Minnesota’s constitution to prohibit abortion, she noted. That move would require approval by the Minnesota House and the Senate and then by a voting majority in the next election.

Members of the Legislature can also propose amendments to the constitution, and the state attorney general can decide how to enforce laws surrounding abortion such as restrictions or prosecuting abortion seekers from out-of-state, she added.

Hasday said she does think with abortion on voters’ minds, turnout could be higher than for a typical midterm election. The number of total voters in the 2018 midterms in Minnesota was 2,611,365, or 64 percent of all eligible voters.

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Audio transcript

CATHY WURZER: Last week's one and only televised gubernatorial debate in Minnesota included a question about legalized abortion. Republican candidate Scott Jensen said the question of keeping abortion legal in the state is not on the ballot this year, but lawmakers who are up for election in Minnesota do have the power to make decisions about abortion in the state. For answers about how this year's election may affect abortion access in Minnesota, University of Minnesota Law School Professor Jill Hasday is on the line. Professor, welcome back.

JILL HASDAY: Thanks for having me.

CATHY WURZER: Republican gubernatorial candidate Jensen as you know said in his debate against the governor last week that if he were to become governor, he would not have the power to affect current abortion laws. How accurate is that statement?

JILL HASDAY: That's not accurate. So right now as I'm sure many people are aware, the Supreme Court has held that there's no federal constitutional protection for abortion access. But the Minnesota Supreme Court has interpreted our Constitution to protect a woman's right to abortion, and that decision isn't changed by Dobbs.

The governor who I think has announced he's anti-abortion would have at least two major strategies if he were interested in banning abortion in Minnesota. First, every time a Justice of the Minnesota Supreme Court retires, resigns, or dies during his term, the governor appoints the replacement. There's regular replacements because there's a mandatory seven-year retirement age. So he could appoint a Justice who would reverse the idea that the Minnesota Constitution protects abortion rights.

Alternatively, there's a possibility of amending the Minnesota Constitution to override this Minnesota Supreme Court decision protecting abortion rights. And he could try to spearhead that in the legislature.

CATHY WURZER: And of course, that would be left to voters to decide a constitutional amendment.

JILL HASDAY: Right. So a constitutional amendment has to pass both houses of the Minnesota legislature, and then it would have to pass a majority of the voters in the next election.

CATHY WURZER: That's correct. The republican candidate Scott Jensen has been trying to pivot away from abortion as an issue. Last week, NPR reported the Minnesota Family Institute, which is aligned with the socially conservative Minnesota Family Council, says it's reserved some $300,000 in ad time for what it's calling the largest pro-life ad buys ever in Minnesota. This certainly makes it seem as though they see abortion as an election issue.

JILL HASDAY: Well, there's a number of ways the people who are being elected now can affect abortion rights in Minnesota. So I already spoke about the Minnesota governor appointing people to fill vacancies in the Minnesota Supreme Court, raising the possibility that they would reverse state constitutional protection for abortion rights.

Members of the Minnesota legislature can propose amendments to the constitution. Again, either an amendment banning abortion, or possibly an amendment enshrining abortion rights, and explicitly in the text of the constitution.

The state Attorney General is also on the ballot this cycle. And the Attorney General decides how to enforce the law. For example, Keith Ellison, our current Attorney General who's pro-choice, there was a recent Minnesota district court decision that struck down a number of restrictions on abortion in Minnesota as inconsistent with constitutional protections, he decided not to appeal that.

Ellison also announced that he wouldn't be participating in efforts by anti-abortion states who might want to prosecute doctors for performing abortions in Minnesota, or might want to go after women who leave anti-abortion states and travel to Minnesota to have an abortion. He said he would do everything he could to resist efforts to help that effort. In contrast to Jim Schultz, who's the republican candidate for Attorney General, who's anti-abortion, has suggested that he wouldn't stop anti-abortion states from seeking to prosecute people for abortions in Minnesota.

CATHY WURZER: A listener sent us an email. Could you help and walk us through the different ways abortion access could be restricted in the state, given different scenarios?

JILL HASDAY: OK. Well, so the Supreme Court held in Dobbs there's no federal constitutional constraints on the power of lawmakers to restrict abortion. That means that congress could just pass a law banning abortion nationwide if it wants to, and has the votes, and there's nothing the Minnesota Supreme Court or the Minnesota legislature could do to resist that.

Another way abortion could be restricted in the state is Dobbs may not be the end point for the US Supreme Court. Many members of the anti-abortion movement support a theory they call fetal personhood, which holds that fetuses should have full legal rights just like anyone walking around on the street. Under this theory, the constitution actually bans abortion everywhere in the interest of protecting fetuses, whether or not any particular state wants to adopt it.

So one possibility is that the abortion issue leaves Minnesotans hands because congress bans it, or the Supreme Court bans it nationwide. Within the state, there's the possibility of the Minnesota Supreme Court reversing its current precedent upholding constitutional support for abortion, or there's the possibility of a state constitutional amendment.

CATHY WURZER: The listeners want to know if abortion were to become restricted, how permanent would that change be.

JILL HASDAY: You know, I mean, does anything last forever, I don't know. It depends what change is for how permanent it is. So for instance, if congress passes a law banning abortion nationwide, then the way to reverse it is just to pass a later law allowing abortion nationwide or leaving it to the states.

If the Supreme Court were to enshrine the idea of fetal personhood in its interpretation of the constitution, the way to reverse that is either changing membership of the Supreme Court, new decision, or a US constitutional amendment, which is very difficult, it requires 2/3 of each house and 3/4 of the state legislatures to agree.

So I don't want to say anything is permanent, but there are some changes that are very hard to reverse. For instance, it doesn't seem likely that in the near term the Supreme Court's Dobbs decision, removing federal constitutional protection for abortion rights, it doesn't seem like that's going anywhere in the near term.

CATHY WURZER: Since you're the U of M, I don't know if you've been talking to your colleagues over the political science department, but I'm curious, a KSTP poll released earlier this month shows abortion as the second most likely issue to influence voters in the election, only behind the economy. What are you hearing from other experts? Might we see a higher voter turnout because of this issue?

JILL HASDAY: Evidence suggests that there might be a higher turnout. For instance, there was an abortion question that was part of the Kansas primary election this year. Usually primaries have very low turnout, but Kansas had a record turnout along the lines of a general election, and generally attributed to intense interest in this abortion question and voter mobilization around it.

CATHY WURZER: I wish I had more time to talk with you, Professor. A lot of information here. Thank you so much.

JILL HASDAY: Thanks for having me.

CATHY WURZER: Professor Jill Hasday's been with us. She teaches constitutional law and family law at the University of minnesota Law School.

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