Federal lawsuit claims Minnesota’s abortion laws unconstitutional

[MUSIC PLAYING] NINA MOINI: Our top story this afternoon. A federal lawsuit is challenging Minnesota's abortion law. A Saint Paul crisis pregnancy center and a national anti-abortion group are suing Minnesota clinics and lawmakers in what appears to be a wider argument that Minnesota's laws on abortion are unconstitutional.

Here to help us tease out just what's in that lawsuit and how it could affect the future of abortion law in Minnesota is University of Minnesota Law School Professor Jill Hasday. Professor, thank you for being with us this afternoon.

JILL HASDAY: Thanks for having me.

NINA MOINI: Absolutely. For starters, some of this in lawsuits legal jargon and things like that can be difficult for people to understand. Could you tell us a little bit about who are the plaintiffs in this case, and what's the argument they're making?

JILL HASDAY: OK, so the background to know is that for the anti-abortion movement, overruling Roe wasn't the end. It was the beginning. Their ultimate goal is to outlaw abortion throughout the United States, either through federal legislation or through court interpretation of federal constitutional law. This suit, filed by a variety of anti-abortion groups, is part of that effort.

The suit contends that Minnesota's laws legalizing abortion violate the US Constitution. Their basic argument is that an abortion should be treated as a termination of parental rights and subject to the same rules and regulations.

The Supreme Court has held that the Constitution requires certain procedural protections to be in place before the state can involuntarily terminate a parent's rights for abuse and neglect. For example, the state has to prove that the abuse and neglect took place by clear and convincing evidence, which is a very high standard of review. Even when a parent voluntarily terminates rights, there's always procedural protections. For instance, a parent cannot voluntarily terminate rights before his child is born.

The plaintiffs in the suit want to argue that the same constitutional requirements have to apply to abortion, and that Minnesota's laws legalizing abortion are unconstitutional because they permit the termination of parental rights before a child is born without a court hearing and without a court finding clear and convincing evidence of abuse or neglect. That's their basic case.

NINA MOINI: OK, thank you for breaking that down. And abortion policy, obviously, came up a lot during the presidential election and the campaign. Back in 2023, we know that Governor Walz signed legislation guaranteeing abortion access, which really put Minnesota among the first states to implement abortion protections since the US Supreme Court overturned Roe v. Wade.

Would you walk us through currently what is legal in Minnesota in terms of abortion?

JILL HASDAY: So even before the Supreme Court overruled Roe v. Wade in 2022, the Minnesota Supreme Court had held in this 1995 case called Doe v. Gomez that the right to privacy in the Minnesota Constitution includes a right to access legal abortion.

In a 2022 decision called Doe v. Minnesota, that was decided right after the Supreme Court overturned Roe v. Wade, a Minnesota district court relied on this earlier interpretation of the Minnesota Constitution to strike down a variety of limitations on abortion that Minnesota had had like 24-hour waiting requirements or parental notification requirements. And the Minnesota Attorney General didn't appeal.

And then in 2023, the Minnesota legislature removed these restrictions from the statute book. So abortion before viability is legal in Minnesota. There's not a 24-hour waiting period, et cetera, et cetera.

NINA MOINI: And so we talked a little bit about the plaintiffs. And some of the people they have listed that they're filing the lawsuit against include Governor Tim Walz, Attorney General Keith Ellison, the Department of Human Services commissioner. Remind me who affects or creates abortion laws, and why are these individuals among those getting sued?

JILL HASDAY: The abortion laws are passed by the legislature and signed by the governor. And their main target of this suit is they want to invalidate these abortion laws, but they have subsidiary claims. For example, they contend that-- they object to the fact that various Minnesota officials have criticized so-called pregnancy crisis centers for essentially deceptive advertising, for instance, allegedly presenting themselves as a place where you could secure abortion services when, in fact, you cannot and the whole purpose is to try to dissuade you from having an abortion.

And they say that these state officials are kind of-- in the language of the plaintiffs-- in cahoots with the abortion industry and that that is inappropriate. And note that these officials never criticize the abortion clinics. A theme running through the complaint, which is-- it's 250 pages. There's a lot going on. But one of the themes is they're claiming that some women have been misled or even coerced into having abortions, and that that's a separate problem.

But at other parts of the complaint, they suggest that they think almost essentially any abortion is the result of the woman being misled or coerced. And the whole language of it is written as if abortion is something inflicted on women rather than something women choose.

NINA MOINI: I wonder, in your role as a law professor, how would you explain to Minnesotans who these types of lawsuits go through the court system and it could take a really long time, what would you tell people about how this might impact Minnesotans?

JILL HASDAY: I never predict the future, but my prediction, if I had to make it, is this lawsuit is extremely unlikely to prevail. It's theory-- it's trying to equate abortion with termination of parental rights. It mainly focuses on cases about involuntary termination of parental rights. But those cases are just very different from abortion, involuntary termination of parental rights, the parent wants to maintain the relationship, and the state, of course, has to meet a high standard of proof to be able to justify terminating it. But that's not what abortion is about.

Abortion is a voluntary activity and there's no child at issue. It's just a fetus at that point. So I don't predict that this will be successful. To me, I see it as more a sign of what's coming. In the years to come, we are going to see many different attempts to find a court that's willing to say that abortion legalization violates the US Constitution.

For instance, many anti-abortion groups make a somewhat different argument, which they generally call fetal personhood, which basically says a fetus should be treated as a full person with rights and it violates the Constitution for the state to allow the termination of their life. So I see this case as it's one of many, but this one, in particular, I wouldn't say has a high likelihood of success.

NINA MOINI: Do you think the lawsuit could get a different reception in federal versus state courts?

JILL HASDAY: Well, OK, so after the Supreme Court overruled Roe, the court says in Dobbs that the Constitution places no limits on abortion regulation, but Dobbs doesn't say that-- Dobbs basically leaves it up to the states. They can legalize abortion. They can prohibit abortion.

This case is trying to do something else. This is saying actually states cannot legalize abortion, even if they want to. So there's no-- in my reading of federal constitutional law, there's nothing in federal constitutional law that sides with the plaintiffs. They're trying to take it a significant next step.

And, in fact, one of the themes the court stressed in the Dobbs decision, which is what overruled Roe v. Wade, is we're leaving it to the people. Let each state decide, et cetera. That's not what this suit is trying to do. The people of Minnesota elected legislators who legalize abortion. This suit is trying to say we're not leaving it to the people. We just want to prohibit abortion.

NINA MOINI: Well, we'll certainly keep an eye on this as it makes its way through the courts. And we really appreciate you coming on to break this down for us, professor.

JILL HASDAY: Thanks for having me.

NINA MOINI: That was Jill Hasday, a professor at the University of Minnesota Law School.