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Brett Kavanaugh's nomination to the U.S. Supreme Court makes it possible that a conservative court majority could overturn a number cases, including the landmark 1973 Roe v. Wade ruling, which established a nationwide right to abortion.

There are a plenty of steps that must happen before the case could even make it before the court, including the successful confirmation of Kavanaugh by the Senate. And even overturning the ruling — which some say is a longshot — wouldn't automatically make abortion illegal in the United States.

But the possibility has still fired up groups on both sides of the issue, in part because undoing Roe v. Wade would send the abortion issue back to the states, where a hodgepodge of laws already weigh on the availability of abortion.

"There's a lot of different moving components in this issue," said Scott Fischbach, head of Minnesota Citizens Concerned for Life, the state's top anti-abortion group. "It's not just a single justice, law or governor, it's all of the above." 

Here's a look at what a ruling could mean in Minnesota, and how both sides are preparing for the more immediate battleground on the issue: the campaign trail.

The future of the abortion rights debate

What would happen in Minnesota if Roe v. Wade is overturned?

Nothing would change immediately, in large part because of a different court case: Doe v. Gomez.

In 1995 the Minnesota Supreme Court heard a case brought by "Jane Doe," who was a stand-in for "all women in Minnesota." Doe challenged a law that excluded abortion coverage from the state's health care plans for low-income people.

The court ultimately ruled in favor of Doe, writing that "the discriminatory distribution of the government benefits can discourage the exercise of fundamental liberties just as effectively as can an outright denial of those rights through criminal and regulatory sanctions."

Minnesota's Supreme Court went a step further than the federal courts, requiring the state to pay for abortions for low-income women who receive state assistance.

That means, even if Roe v. Wade is overturned at the national level, Doe v. Gomez still establishes abortion as a constitutional right in Minnesota. The only way it can be undone in Minnesota would be through an amendment to the constitution or a decision by the court to overturn its own precedent, which is rare. In Minnesota, DFL Gov. Mark Dayton has appointed five of the seven current justices, giving the state supreme court a liberal majority.

"The judicial branch is not a total savior, but we certainly are in a better position in Minnesota than women are in other states," said Andrea Ledger, director of NARAL Pro-Choice Minnesota.

The appointment of Kavanaugh has brought back the debate about "trigger laws," which were passed after Roe v. Wade.

The laws, currently in place in North and South Dakota, Mississippi and Louisiana, would make abortion illegal immediately if the Supreme Court were ever to overturn the ruling. Minnesota does not have a trigger law in place. It also does not have any pre-Roe v. Wade abortion bans on the law books. That's not the case in more than a dozen states, some of which could be reinstated if the ruling is overturned.

If high court reverses Roe v. Wade, 22 states likely to ban abortion

So what, if any, restrictions does Minnesota currently place on abortions?

While Roe v. Wade stands, states can't outlaw abortions, but they can legislate around it, regulating how, when and under what circumstances a woman may obtain an abortion.

In Minnesota, divided government has kept most abortion-related bills from becoming law in recent years.

Under current law in Minnesota, women must receive mandatory counseling before the procedure, followed by a 24-hour waiting period. If a minor is receiving an abortion, a parent must be notified.

Many states have gone much further than Minnesota, restricting late-term abortions, for example, or limiting the use of state funds or private insurance in abortion coverage. They've also passed laws that require the disclosure of abortion risks to patients before the procedure.

While Dayton has blocked any further restrictions on abortions while in office, that hasn't stopped the Republican-controlled Legislature from introducing bills to restrict abortions. That includes a proposal that would prohibit abortion when a fetal heartbeat is detected, and others that would increase licensing and fee requirements on clinics where abortions are performed.

Dayton is not running for re-election this year, leaving the governor's office open, and the Republican-controlled state House is on the ballot.

"If we elected an anti-choice governor, we would see a whole spate of bills introduced," said Ledger.

So, the focus for both sides of the abortion issue is the upcoming election?

Yes. Fischbach said his group and other advocates are "singularly" focused on electing candidates who oppose legal abortion this fall. If the House stays in Republican hands and a Republican wins Dayton's seat, bills restricting abortions would have a chance, he said. Both of the top Republican gubernatorial candidates, Jeff Johnson and Tim Pawlenty, oppose abortion.

"In Minnesota we've passed so many pro-life laws and the governor has vetoed every single one," he said. "One person killed them all."

But the issue is equally galvanizing for the groups that support abortion rights. After President Trump nominated Kavanaugh, DFL candidates for governor promised to defend abortion rights in the state.

"Tonight is a harrowing reminder of the immense power of elections," U.S. Rep. Tim Walz, a DFL candidate for governor, tweeted after his nomination. "But now is not the time to wallow, now is the time to vote."

Briana Bierschbach

Author

President Trump's nomination of Brett Kavanaugh to the Supreme Court opens the door to overturning the decision that made abortion legal in the U.S. But if that happens, what would the law be in Minnesota?

What would happen in Minnesota if Roe v. Wade is overturned?

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