County attorney pushes to appeal Minnesota abortion ruling

A group of people holding signs watches on.
Destiny Lindgren (center) and others listen to speakers during an abortion rights march and protest at the Minnesota State Capitol on July 17.
Tim Evans for MPR News

A judge in St. Paul heard arguments Friday over whether a county attorney from western Minnesota may intervene in a high-profile abortion case.

Ramsey County District Judge Thomas Gilligan found that a number of restrictions on the procedure are unconstitutional in a ruling last month. Traverse County Attorney Matthew Franzese wants to take the case to a higher court after state Attorney General Keith Ellison said he would not file an appeal.

Gilligan ruled that authorities may not enforce the state’s two-parent notification law for minors, a 24-hour waiting period, a requirement that only physicians perform abortions, as well as a requirement that abortions after the first trimester be performed in a hospital.

The judge also struck down felony penalties for abortion providers who run afoul of state regulations, as well as laws that require providers to inform patients of abortion’s "particular medical risks."

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Gilligan wrote that the laws violate the right to privacy established under the 1995 Minnesota Supreme court decision in Doe v. Gomez.

His decision came as the result of a lawsuit first filed in 2019 by a physician and a nurse-midwife, both of whom are unnamed, as well as the abortion rights group Our Justice.

In a statement three weeks ago, Ellison said there was a low likelihood that a higher court would reinstate the restrictions. The attorney general noted that defending the lawsuit had already cost the state $600,000, and said that providers and Minnesotans seeking abortions need finality and “need to know what the law is.”

A week after Ellison’s announcement, Traverse County Attorney Matthew Franzese filed a motion to intervene in the case in an effort to appeal Gilligan’s ruling himself. Franzese, who did not make arguments at the Friday hearing, has help from the Thomas More Society, a legal group that often represents abortion opponents.

Franzese and his attorneys argue that Judge Gilligan’s decision applies only in Ramsey County and has fomented confusion about whether the abortion restrictions may still be enforced in Minnesota’s other 86 counties. Franzese also argues that the district court does not have the authority to decide constitutional claims against the state because there’s no state law that authorizes such a lawsuit.

Minneapolis attorney William Mohrman, who represents Franzese and the Thomas More Society, told Gilligan that the Minnesota Court of Appeals should settle these questions.

“My client has an interest in intervening to serve an appeal in this case because he is charged with enforcing Minnesota state statutes, and your injunction prohibits him from doing that, if it applies to him,” Mohrman said.

Brad Colbert, a professor at Mitchell Hamline School of Law, said Franzese only represents his county.

“He has no more right to represent the state of Minnesota [in its] entirety than I do,” Colbert said in an interview Thursday. “He doesn’t have any statewide authority to do that. He has the authority granted to him in the county where he was elected.”

Assistant Attorney General Jennifer Olson said much the same in her arguments in court.

Jess Braverman, legal director of the group Gender Justice and one of the attorneys representing the plaintiffs, argued among other things that Franzese filed his motion too late, noting that the case had been litigated for more than three years.

“There’s no excuse, none, for waiting this long,” Braverman said. “And if the county attorney believes he has an interest in raising this, and I’ll put in quotes, defense, because it’s nonsensical to me, the time to raise this was then, not now. Nothing has changed.”

Judge Gilligan appeared skeptical of Mohrman’s arguments. “Timeliness I think is very important here,” he said.

Gilligan promised to make a decision soon on whether Franzese will be allowed to file an appeal.