“One of my core values is choice,” said Minnesota State Senator Jen McEwen. “This is the value that I was raised with, that I felt very grounded in my community with. My colleagues and I predicted that Roe v. Wade was going to be stripped down. We really wanted to get organized, so that if and when that were to happen here in Minnesota, we would be ready to protect Minnesotans’ rights to access.”
On January 31, 2023, the Protect Reproductive Options (PRO) Act — the first bill of the 2023 Minnesota legislative session to be introduced and debated — was signed into law by Governor Tim Walz. While Minnesota already guaranteed abortion access up to viability, the new bill enshrined reproductive rights into state law in an area of the country that has felt grave effects from Roe v. Wade’s overruling. Although at first glance, the PRO Act seems like no more than a symbolic message for the Democratic Party, a closer look reveals that it has significant consequences as a safeguard against potential future anti-abortion judicial decisions.
“Every individual who becomes pregnant has a fundamental right to continue the pregnancy and give birth, or obtain an abortion, and to make autonomous decisions about how to exercise this fundamental right,” the PRO Act establishes.
Abortion in Minnesota has been legal for the past 50 years, but the fight to protect reproductive rights in the state has been a long and continuous struggle. Before the Supreme Court’s landmark decision in Roe v. Wade, receiving an abortion — or simply seeking one out — was considered a criminal offense under a state law from the 1950s. But the 1973 ruling completely changed this by establishing a constitutional right to obtain an abortion.
Reproductive freedom for Minnesotans was further strengthened in 1995, when the state Supreme Court struck down a law that prohibited taxpayer dollars from paying for abortion-related health services in a case known as Doe v. Gomez. In the same decision, the court also affirmed Roe v. Wade’s ruling that Minnesotans bear a fundamental right to abortion and to carry out a pregnancy without government interference.
Following the 1995 decision, Minnesotans still faced a 24-hour waiting period to receive abortions, which added another barrier to access for poor and rural women, who would then have to take multiple trips to a clinic. Similarly, minors needed the consent of both parents for abortion care, which often became an issue when involving divorced parents. In 2019, a coalition of nonprofit groups challenged these restrictions as unconstitutional and in violation of the Gomez decision in Doe v. Minnesota.
“This case goes on for two years,” said Jill Hasday ’94, a Professor of Law at the University of Minnesota Law School and graduate of Yale College and Yale Law School. “And the district court in Minnesota ultimately issues its opinion, which is over 100 pages long, two weeks after Dobbs. It strikes down the 24-hour waiting period. It strikes down the two-parent notification requirement for minors. It strikes down a requirement that doctors have to perform abortions as opposed to trained medical personnel who don’t have a medical degree. It strikes down felony penalties for doctors who make reporting errors.”
The 1995 decision continues to protect the right to an abortion in Minnesota, even after the Supreme Court’s 2022 decision in Dobbs vs. Jackson. Still, many Democrats in the state began to worry in the wake of Dobbs that judicial decisions were not enough to protect reproductive rights. Until the passage of the PRO Act, reproductive freedom in Minnesota was merely guaranteed by one court’s opinion — similar to Roe v. Wade’s protection of rights at the national level. This dynamic made Democrats worry that abortion rights could one day be overturned by a more conservative court.
“Back here in Duluth, we had a fundraiser, raising money for the abortion clinic here. We had it at one of the breweries in town and it was packed, standing room only,” said McEwen. “People were so enthusiastic that we have a legislature that is passing the PRO Act and has other pieces of legislation that we’re also working on to expand access to abortion care. I’ve since received so many supportive notes and emails, with people coming out of the woodwork, thanking the legislature and saying how grateful they are that we have the political will and the votes here in Minnesota to strengthen and preserve abortion rights.”
State Senator Jen McEwen of Duluth, a founding member and chair of the state legislature’s Reproductive Freedom Caucus, is the chief senate author of the PRO Act. She was elected to her first term in the fall of 2020, when Republicans in Minnesota held a majority in the Senate. During her first two years in office, McEwen rose to become a leader of women’s healthcare rights in the state legislature, first authoring the PRO Act in 2021. At the time, the bill didn’t have a chance of entering into law due to the state’s divided legislature. But in last fall’s election, the Democrats gained a majority in the state senate, establishing a Democratic trifecta with single-party control over the senate, house, and governorship. McEwen, now in her second term, has led the battle towards enshrining reproductive freedom in Minnesota.
“It is of significance that we’ve moved very quickly with this. We’re really trying to make it very clear that Minnesota is going to be a safe place for people to seek the full spectrum of reproductive health care, gender affirming care, all abortion, pregnancy, all of it,” said McEwen. “These are our values. We are going to be a beacon of reproductive freedom in the Midwest.”
This region of the United States has already felt the ramifications of the 2022 Dobbs decision, which overturned Roe v. Wade and allowed individual states to implement heavy restrictions and outright bans on abortion. Various states throughout the country had trigger laws that immediately restricted abortion when Dobbs took effect, which drove up demand for out-of-state abortions for women who live in Republican-controlled states. Since the decision, Planned Parenthood in Minneapolis has seen a 13-percent increase of out-of-state patients seeking abortion care as well as a 40-percent increase in second-trimester abortions.
This past summer, the state Supreme Court in Minnesota’s neighboring state of Iowa overturned a constitutional interpretation protecting abortion that had been in place for just four years. Tim Stanley, the current executive director of the Midwest’s Planned Parenthood Action Fund, likewise knows that the PRO Act extends far beyond being a political message. Rather, it exists to prevent history from repeating itself as it did in Iowa.
“Then we have essentially a double layer of protection. We have statutory protection, and we have a constitutional protection,” said Stanley. “So the way I look at it as a political strategist, is if the opposition ever took control, they have to pick which of the protections they’re going to go after first. So to repeal a law, they need a pro-life trifecta.”
Yet the struggle for reproductive justice hardly stops with a new court decision and the PRO Act. Now that the Democrats carry a trifecta in the state, they look towards additional legislation to strengthen Minnesota as a safe haven for reproductive healthcare.
Democratic State Senator Erin Maye Quade, who represents Apple Valley, is working on the Reproductive Freedom Codification Act. Although the Gomez decision protects Minnesotans’ right to abortion, previous legislatures have passed laws in conflict with this decision and have been overturned in court.
“The Reproductive Freedom Codification Act removes all of those laws that have been ruled unconstitutional,” said Maye Quade. “The PRO Act is a great affirmative statement of values, but it technically sits in conflict with other things that exist in law now. We want to remove all of those from statutes so that the affirmative statement of values is the reality.”
Because of the Dobbs decision, old laws on the books, known as zombie laws, now have the potential to re-enter into states’ political landscapes. Other states in the country have already felt the effects of such laws, some of which went into effect immediately after Roe v. Wade was overturned.
“One thing that many states learned after Dobbs was overturned, is that it can be dangerous to have statutes on the books that are not enforced now, but if something were to change in court, interpretations could come roaring back to life,” said Hasday. “For instance, Wisconsin has this 19th-century abortion law that just stayed on the statute books, and no one paid any attention because it didn’t have any force because the Supreme Court in Roe and then Casey interpreted the federal constitution to protect abortion rights.”
In efforts to strengthen Minnesota as a beacon of reproductive rights, Democrats are also working on a third bill, named “The Reproductive Freedom Defense Act,” which would make it illegal for an out-of-state patient who obtained a legal abortion in Minnesota from being arrested or having their medical records released to a state that imposes civil or criminal penalties for receiving abortions.
Although some legal scholars argue that there are no existing viability standards limiting abortion access in Minnesota, most providers do not perform abortions past this point. Yet on the other side of the aisle, conservative politicians fear that movements by the Democrats will loosen abortion restrictions with their new policies.
Jim Abeler, a Republican senator from Anoka, worries about how the Democrats define abortion as a “fundamental right” and believes that the PRO Act opens up the gates to making abortions past viability more common.
“The PRO Act gives you a fundamental right to [abortion]. When you combine it with the current state of Minnesota as laws are struck down, at least for the time being, that’s the effect of it. It’s relatively extreme,” said Abeler. “We’re the people who are concerned, on the side of those who think that the baby deserves quite a bit of standing. And those who want the freedom to get an abortion, the overlap has been that abortion should be more rare. When you get further along, into their second and third trimester, it seems unquestionable that there’s got to be some level of personhood.”
Since 2005, Abeler has been working on a program called Positive Alternatives, which allocated two and a half million dollars per year to pregnancy centers that work to support poor and young mothers financially and emotionally. Currently, the governor is looking to cut funding for Positive Alternatives, which pro-choice advocates argue provide money to programs that pose as reproductive healthcare clinics but then dissuade women from getting abortions.
“I gave my opinion about the government terminating this program, which almost brought me to tears. It’s such a nice program and so good about what it’s trying to accomplish in a constructive way,” said Abeler.
Meanwhile, Democrats are pushing through with their agenda this session, and furthermore acknowledge that the PRO Act alone isn’t enough to create the change that they envision.
“Unfortunately, meaningful access hasn’t been available to large swaths of the country for a long time, particularly in the South,” said Maye Quade. “And so, for a lot of Americans, sadly, the fall of Roe didn’t change anything for them.”
The PRO Act now prevents municipalities within Minnesota from enacting abortion restrictions, adding a protection in the state especially for rural women.
“Another big piece with the way that things have gone is to take measures in Minnesota to protect our caregivers — and caregivers and patients coming in from other states,” said McEwen. “We would not be participating in some sort of draconian authoritarian crackdown on patients or doctors who are giving this care or receiving this care.”
However, Minnesota’s infrastructure as it stands does not have the capacity to support a high increase in abortion demand. The city of Duluth is currently providing care for all of northeastern Minnesota, northern Wisconsin, and the Upper Peninsula of Michigan. Long trips to clinics act as great burdens to rural women, who have to procure time off from work and find childcare in order to make a trip. There are a total of eight clinics in the state, only one of which, in St. Paul, offers services after 20 weeks of pregnancy.
Likewise, Minnesota does not offer guaranteed sick or paid family medical leave. During this legislative session, McEwen is also working to remove these barriers, increase the number of clinics, and expand access to medication abortion.
Over 50% of abortions are medication abortions in Minnesota. There are also concerns about the movement at the national level to outlaw the medication, particularly around the upcoming lawsuit that infamously-conservative federal judge Matthew Kacsmaryk is slated to hear at the end of February. The suit challenges the FDA’s approval of mifepristone, which is in the first of two drugs taken to end a pregnancy. If the lone judge of Texas rules to ban mifepristone, under the debunked argument that it bears dangerous side effects, abortion medication could become completely inaccessible throughout the entire country.
“That means we’re going to have all of these people, both here in Minnesota and in neighboring states, actually having to come to Minnesota for a surgical abortion that they could have just done in their home privately,” said McEwen. “It could be a huge public health crisis. We barely have the clinics we need now, and people basically will be forced to be pregnant. It’s horrifying. If it does take effect, it will be the first time that Minnesotans have had their rights to abortion care restricted in decades.”
Because of these national and state movements to restrict reproductive rights, a law like the PRO Act and its counterparts become all the more important. At the same time, laws that enshrine reproductive rights in Minnesota are not enough to manage the increasing demand for abortion from out-of-state patients. Thus, Democratic politicians in Minnesota are moving forward with haste to expand access to reproductive healthcare.“It’s an affirmative statement,” said McEwen in reference to the PRO Act. “A baseline, to have it established in our statutory law and to provide another bulwark, just in case the courts were to switch in Minnesota. It’s very important in those ways, but in terms of the actual accessibility of abortion care and availability, meaningful availability of reproductive care for people in our state and across the country is what will really matter. Because even when we had Roe v. Wade as the law of the land, abortion care was inaccessible for so many people. It is that meaningful piece of truly approaching abortion care as part of our essential health care.”