FAQ: What are DFL lawmakers proposing next on abortion?

Minnesota lawmakers on Monday are set to consider a bill that would offer legal protection for out-of-state patients who travel to Minnesota for abortions and for the providers that treat them.

The move could guard both groups against laws on the books in dozens of other states where abortion is banned or heavily restricted, and where abortion providers and those seeking to terminate a pregnancy face legal penalties.

It’s the latest step by DFL leaders at the Capitol to make Minnesota a legal safe haven for abortion and it comes after lawmakers earlier this year guaranteed the right to reproductive  health care — including abortion — in state law.

The latest proposal, called the Reproductive Freedom Defense Act, has generated little blowback on its path through the Capitol and is expected to pass the DFL-led House. It is still moving through Senate committees. Another measure, known as the Reproductive Freedom Codification Act, is also nearing a vote in the House and Senate but is expected to draw more criticism.

Before Monday’s vote, here’s a little more about the bills and how they would change the legal landscape for abortion in Minnesota.

What’s up for debate on Monday?

The Minnesota House of Representatives on Monday is set to weigh House File 366, a proposal that would prevent state courts or officials from complying with extraditions, arrests or subpoenas related to reproductive health care that a person receives in Minnesota.

“What we're doing is essentially enacting a type of shield to say that whatever happens in Minnesota, as long as it's legal in Minnesota, that it stays in Minnesota,” bill author Rep. Esther Agbaje, DFL-Minneapolis, said. “And we won't allow people from other states who are seeking to criminalize people just seeking their health care to persecute them.”

It would also allow a person facing an abortion-related case against them in another state to countersue for the costs, damages and attorney’s fees associated with defending the case.

The DFL-led House is expected to pass the bill Monday, and the Senate is poised to take it up.

What is driving the push to add legal protections?

Supporters, including reproductive rights groups, medical associations and abortion providers, say the bill is important because it would block legal action from other states where abortion is banned or heavily restricted. 

The effort comes in response to abortion laws around the country that have created penalties for those seeking to terminate a pregnancy and for medical providers that offer abortion services. 

Laws on the books in Texas and Oklahoma, allow private citizens there to sue anyone they believe has “aided or abetted” in obtaining an abortion in the state, and make them eligible to receive $10,000 or more. Several other states have bans or restrictions in place that can result in felony charges for those who provide abortions outside the narrow legal landscapes they’ve created.

Dr. Joseph Nelson is a family physician who moved from Texas to Minnesota after Texas lawmakers enacted laws restricting access to abortion and setting civil and criminal penalties for providers.

Nelson, who works at Whole Woman’s Health in Bloomington, said Minnesota’s legal landscape is easier for him to navigate. But abortion providers in Minnesota would feel even more secure treating out-of-state patients if lawmakers passed House File 366, he said.

“I would know for sure that anyone coming from an outside state wouldn't be treated differently,” Nelson said following a committee hearing earlier this year. “It would also mean that many more providers who are comfortable providing these services would feel comfortable helping out with the huge demand that's going to be continuing to come our way as more and more restrictions continue to get passed.”

Why is debate over another bill expected to be tougher?

Minnesota lawmakers are also weighing Senate File 70, a bill that would strike dozens of state restrictions on abortion and repeal various outdated laws around sodomy, fornication and adultery.

Abortion access groups and providers have championed the changes and said they should be approved to excise onerous restrictions on abortion providers and protect patients’ privacy. Meanwhile, opponents said striking the language goes too far in removing reasonable restrictions collecting important data. 

If approved, it would remove the viability standard, end some mandated reporting from abortion providers about when and how people access abortion services, and drop restrictions around waiting periods, parental notification and other provisions that were struck down last year by a Ramsey County judge.

The bill could soon reach floor debate in either chamber and it has already drawn backlash from GOP lawmakers and abortion opponents who say that it goes beyond what most Minnesotans want in terms of regulations on abortion.

Why are lawmakers putting forward these changes?

DFL lawmakers are pushing forward the proposals to remove from state law restrictions on abortion that were tossed out by Judge Thomas Gilligan last year, as well as requirements they view as overly taxing for providers and patients. They also seek to remove outdated provisions on other topics from state law.

After the Supreme Court last year reversed the federal constitutional right to an abortion, Minnesota Democrats said the state should do more to affirm the right to an abortion care here. 

They’ve also said that the Legislature should take the time now to remove restrictions from statute, so that they can’t be enforced if future courts come down differently on the right to abortion under the Minnesota Constitution.

“We have the duty to make and pass the policy and repeal bad policy. And these anti-abortion restrictions, in addition to being unconstitutional, are bad policy. They harm patients, they harm providers, and they push care and access out of reach,” said Sen. Erin Maye Quade, DFL-Apple Valley, who’s carrying the bill in the state Senate. 

Which restrictions would be repealed under that bill? 

Senate File 70 would wipe from the state’s books dozens of provisions that deal with abortion. Among them: 

• Requirements that a minor seeking an abortion notify both parents (ruled unconstitutional July 2022)

• Requirements that abortion providers give summary data to the state on patients, including where they live, what level of education they have and the estimated gestation age at which the abortion was performed

• Setting a penalty for providers that fail to report that information (ruled unconstitutional in 2022)

• Regulations on how fetal remains must be disposed of after an abortion or miscarriage

• Language around viability and definitions that identify abortion as a criminal act except under specific circumstances (provisions ruled unconstitutional in 1976)

• A requirement that only physicians can perform abortions (ruled unconstitutional in 2022)

• Requirements that abortion providers take reasonable measures to preserve the life and health of a fetus if an abortion performed after 20 weeks of pregnancy results in a live birth

• Limits on state funding to organizations that provide abortions 

• Setting a criminal penalty for producing, selling or a giving a drug that can produce a miscarriage or abortion and for providing information about how to access that drug

The bill would also eliminate other criminal penalties on the books that haven’t been enforced in decades, including criminal penalties for sodomy, sex between a man and a single woman, and adultery when a woman engages in sex with someone other than her husband.

The full text of the bill and what it would change is here.

Which of those has the court addressed?

Back in July, Ramsey County Judge Gilligan ruled that several of these statutes violated the Minnesota state constitution. Since that ruling, these laws have been enjoined by the court and thus made unenforceable. Those include the parental notification requirements and a mandatory 24-hour waiting period.

After Attorney General Keith Ellison declined to appeal Gilligan's ruling, several people have attempted to intervene in the case. They include Traverse County Attorney Matthew Franzese, whose case is currently before the state Court of Appeals.

Those who have sought to appeal the ruling argue that lawmakers shouldn’t remove the laws while the effort to intervene is pending.

People talk about Senate File 70 removing all limits on later abortions, is that true?

The bill would strike Minnesota’s fetal viability threshold, which stipulates that a provider can’t perform an abortion after a fetus could live outside the womb unless a patient’s life or health are at risk. Viability is typically held to be between 23 and 24 weeks of pregnancy.

That law also requires that abortions be performed in a hospital and must “assure the live birth and survival of the fetus” to the extent possible.

State law stipulates that it's a felony to provide an abortion after viability outside of those constraints. But the reality on the ground is murkier.

The 8th Circuit Court of Appeals in 1976 ruled that Minnesota’s law restricting abortions after viability was unconstitutional. And that made pieces of the law unenforceable. 

Despite that, abortions after the viability threshold have been exceedingly rare, both locally and nationally. There are no clinics in Minnesota that perform abortions past 23 weeks and 5 days after the last menstrual period, according to their available guidelines. 

Just 1.1 percent of reported abortions in Minnesota between 2008 and 2021 took place after an estimated 20 weeks gestation, according to data from the state health department. Abortions performed after 24 weeks were even rarer, with just 31 taking place during that period. 

According to guidance from the American College of Obstetricians and Gynecologists, these minority of cases often occur “as a result of complications in the life or pregnancy of a pregnant person.”

“When abortions occur later in the pregnancy, they sometimes involve balancing medical concerns,” it said. “[W]e don’t believe that elected politicians, who lack our members’ education, training, experience, expertise and responsibility to patients, can or should be in the exam room weighing those factors or in a position of substituted judgment for our members and their patients.”

Would the state still get data about abortions in Minnesota?

If Senate File 70, becomes law, the state would no longer require abortion providers to obtain and share information about patients who seek abortions, like their age, number of previous abortions or reason for terminating a pregnancy. That information is now compiled and made public by the Minnesota Department of Health. 

Earlier this month, MinnPost reported that the department also requires additional reporting about the demographics of those seeking abortions in Minnesota that goes above and beyond state law.

Supporters argue that the information makes private details about patients’ medical history public, and that could be used to identify them in certain circumstances. For example, if a person has a large family and lives in a small community.

They also point to Gilligan’s ruling, which struck down the penalty for not tracking and reporting the data as a further reason why the state should do away with the reporting standards altogether.

“The report itself is just a tool for data surveillance, and is meant to create a barrier for people accessing care and people providing care, because you have to maintain a separate system, to pay for that system to report to the state,” Maye Quade said. 

Republican lawmakers and groups that oppose abortion say the state should maintain the recording standards to understand the demographics around who seeks abortion services in Minnesota.

“If we're not collecting that data, we're not making informed decisions,” Rep. Anne Neu Brindley, R-North Branch, said. “And again, that data is not attached to individual persons. We certainly don't know who these people are, what their circumstances are, necessarily. But we need that data to make informed decisions.”