You asked, we answered: What would the ‘PRO Act’ really change?
The Minnesota Senate is set to debate a proposal Friday to enshrine in state law the right to abortion and other reproductive care options, teeing the bill up for the governor’s signature.
If approved and signed, the bill would ensure that Minnesotans have a legal guarantee to an abortion. It would also make Minnesota the first state to adopt such a change via legislative action in the post-Roe era.
While the legislation wouldn’t change much in terms of current access to abortion services in Minnesota, it has fueled strong support and opposition at the Capitol during the early weeks of the legislative session.
The bill, known as the Protect Reproductive Options or PRO Act, has passed through the House and is a step away from reaching the governor’s desk. Gov. Tim Walz has said he will sign it.
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Before the next debate, here’s a look at abortion access now in Minnesota and what could change if the PRO Act becomes law.
What’s the reality on the ground for abortion access in Minnesota?
Abortion is currently a protected right in Minnesota based on a 1995 state Supreme Court decision known as Doe v. Gomez.
Minnesota has eight brick-and-mortar abortion clinics, a majority of which are located in and around the Twin Cities area. Five of those provide surgical abortions, according to their websites. The other three offer only medication abortion services. There are also telehealth providers, such as Just the Pill, that operate in the state.
Abortions also occur in other health care facilities, such as hospitals. According to 2021 state data, these accounted for a small percentage of all abortions in the state.
After the Supreme Court overturned Roe v. Wade last summer, Minnesota saw an influx of patients coming to the state for abortion services because trigger laws in neighboring states took effect, banning or severely restricting abortion.
Dr. Sarah Traxler, chief medical officer at Planned Parenthood North Central States, said her clinics in Minnesota have seen a 13 percent increase in out-of-state patients seeking to terminate a pregnancy.
And providers have reported a 40 percent increase in patients seeking abortions in their second trimester, between 14 to 26 weeks of pregnancy. Those were mainly among patients traveling from other states, she said.
“When patients are experiencing barriers to abortion access it takes significantly more time for them to pull resources, to get childcare, to coordinate time off of work, to logistically plan travel and places to stay,” Traxler said. “And so any time you put a barrier in place, there's going to be a delay. And the more barriers you put in place, the longer the time frame is going to be where they can access that care.”
While the Supreme Court’s ruling had no impact on abortion here, a state district court judge lifted some restrictions on abortion in the state last year, deeming them unconstitutional.
In that case, called Doe v. Minnesota, Ramsey County Judge Thomas Gilligan ruled that a variety of existing abortion laws could prevent a person from accessing an abortion, thereby infringing on their rights under the state constitution based on that 1995 state supreme court decision.
The laws the judge threw out required a 24-hour waiting period to obtain an abortion, set penalties for physicians if they didn’t report certain data about abortions they provided, required all living parents or guardians to be notified of an abortion for a minor or for a judge to waive that requirement, assigned information that a provider needed to read to a patient prior to an abortion, and required that abortions after the first term of pregnancy be performed by a physician.
The ruling is being reviewed for a possible appeal, but the restrictions are currently not being enforced.
How would things change if the PRO Act becomes law ?
When it comes to abortion access, very little would change. People in Minnesota would still be able to obtain an abortion. But state law, along with court precedent, would guarantee that right.
“[The bill] does guarantee the fundamental right for every Minnesotan to make personal and private decisions about their reproductive health. What it does not do is change the current landscape of reproductive freedom in Minnesota,” said Rep. Carlie Kotyza-Witthuhn, DFL-Eden Prairie, during the House debate on the bill. “This is a secondary level of protection to the constitutional freedoms we currently enjoy based on the legal precedent of Doe v. Gomez at the Minnesota Supreme Court.”
The bill’s supporters say it’s important to enact because courts can change, and that means that the current right to an abortion under the Minnesota Constitution could be overturned by a future court.
The PRO Act would also guarantee the right to carry a pregnancy to term, access birth control, sterilization or family planning help, along with other reproductive care options. And it would prohibit local governments from enacting policies that infringe on a person’s right to access abortion and reproductive care.
How different is Minnesota’s framework from what was established (then repealed) in Roe v. Wade?
While some have referred to the PRO Act as an effort to “codify Roe” the bill is more closely related to the state abortion protections that already exist.
In its 1973 Roe v. Wade decision, the Supreme Court found that abortion is a fundamental right under the due process clause of the Constitution, prior to fetal viability.
It established a framework based on pregnancy trimesters that determined at what stage the state could limit or ban abortion. That framework was discarded in 1992, when Planned Parenthood v. Casey upheld the viability standard but applied the “undue burden” test instead.
These protections were overturned by the high court in June of 2022, meaning that states could adopt more restrictive abortion laws or ban abortion outright. But crucially, advocates say, the state of Minnesota never adopted Roe or Casey as part of its abortion laws.
In its 1995 decision, the Minnesota Supreme Court established that abortion is protected under the state constitution’s right to privacy.
“We can think of few decisions more intimate, personal, and profound than a woman's decision between childbirth and abortion,” the court’s decision read.
Since then, abortion in Minnesota has been governed by that decision, including after Roe was overturned. That’s what the PRO Act would effectively write into law and expand upon.
If the PRO Act passes, what happens to the laws still on the books?
If the PRO Act passes, many of the restrictions on abortion would remain on the books, though several have been deemed unconstitutional by Judge Gilligan.
Some DFL lawmakers have proposed other legislation that would strike the requirements that have been deemed unconstitutional, along with other provisions that require providers to obtain and report information about the abortions they perform and the people seeking them.
“It is important that we make sure that our statutes are consistent with what is and isn't constitutional,” said Jess Braverman, legal director at Gender Justice.
After Roe v. Wade was overturned, some states saw old laws on the books come back into effect. For example, in Wisconsin, a 173-year-old near-total abortion ban was triggered after the Supreme Court’s decision.
“We should not have unconstitutional laws just sitting there in our statutes, lurking, potentially causing that kind of chaos one day,” Braverman said.
Some Minnesota lawmakers have also sought to put in place additional protections for abortion providers and patients who seek to end a pregnancy in Minnesota. Both those provisions are advancing through legislative committees.
Abortion opponents have said the laws on the books were passed with bipartisan support under previous Legislatures and could still be revived under a legal appeal.
“The laws that are at issue in the case are some of but not all of the laws that would be repealed under House File 91 or Senate File 70,” Teresa Collett, an attorney working with anti-abortion groups to intervene in the Ramsey County case. “The case is open, the court is reconsidering and they’re up on appeal from a separate party.”
Would the bill impact the threshold for viability?
Whether the state still has a viability threshold depends on how the law is interpreted. It’s unclear if the viability standard is still enforceable due to a 1976 federal 8th Circuit Court of Appeals decision.
“I know there's some disagreement among legal experts, but I think many would agree with me since that time, back in the 1970s, the ‘potentially viable’ language was gone,” Braverman said. “So I think it's been about 50 years or so since Minnesota has had any sort of formal viability standard in that sense.”
In Minnesota, there are no clinics that perform abortions past 23 weeks and 5 days after the last menstrual period, according to their available guidelines.
Dr. Kristin Lyerly is an OBGYN who previously practiced in Wisconsin but transitioned to Minnesota to practice after Roe was overturned. She said that post-viability abortions occur when a fetus is found to have a serious or fatal medical condition and that often an abortion is safer than asking someone to carry a pregnancy to term.
“I don’t know a doctor out there who would ethically perform an abortion after viability. Abortions that happen after a fetus is viable happen for very complicated reasons,” Lyerly said. “These are not decisions that are made flippantly, these are desired, wanted pregnancies, these are heartbreaking situations and anything that prevents abortion after viability is.”
According to the American College of Obstetrics and Gynecology (ACOG), just 1-2 percent of abortions occur after 21 weeks, and many providers do not offer abortions after 23 weeks and six days.
“The only time termination of the pregnancy comes up, or is even considered, [after that time] is in those situations where there are anomalies that the fetus has that are not fixable, and that are not compatible with life,” said Dr. Siri Fiebiger, chair for the Minnesota section of ACOG.
Fiebiger says these cases are very rare. According to 2021 state data, there were just five reported occurrences where an abortion was performed at or after 24 weeks, with the latest occurring at 28 weeks.
How does this bill situate Minnesota nationally in terms of abortion access?
If lawmakers approve and the governor signs the PRO Act into law, Minnesota will become the 16th state to explicitly protect the right to an abortion in state law or a state’s constitution. And it would join Colorado, Maryland, New Jersey, Oregon and Vermont in providing abortion access without a limit on viability.
California, Vermont and Washington also guarantee the right to a broader spectrum of reproductive health care options.
Could minors access abortion services, or other reproductive health services, under the bill?
They could. This bill guarantees the right to reproductive health care services for Minnesotans, regardless of their age. One of the laws deemed unconstitutional this summer was the requirement that a minor notify all living parents or guardians before undergoing an abortion, or getting a judicial bypass.
Opponents have alleged the PRO Act could not only allow minors to obtain an abortion, but also seek out more permanent procedures.
“This bill would not only allow for a young girl to get an abortion, but to go in and be sterilized,” Rep. Anne Neu Brindley, R-North Branch, said during a floor debate. “This bill doesn’t address the safety of those little girls.”
But physicians say their codes of medical ethics would bar them from acting in those situations unless some serious medical issue presented itself.
“I don't know of any providers who would, in good conscience without a lot of counseling and a lot of conversation with a minor, be willing to provide sterilization,” Fiebiger said.
“The guidelines and statutes, as they exist, are to protect those minors whose parents are not acting in the minors' best interest. In the ideal world, parents would always have their minor's best interests at heart. But we know that's not true, particularly in cases of sexual abuse. And so, in this particular situation, minors need to have that capacity to speak for themselves.”
If passed, could the PRO Act be overturned later?
Yes. If the Legislature passes it and the governor signs the bill into law, a future Legislature could pass bills changing the policy. So it is not permanent.
Are lawmakers considering a constitutional amendment to guarantee the right to an abortion?
DFL leaders at the Capitol have said they’re also weighing sending to voters a constitutional amendment that would guarantee the right to an abortion.
The move is seen as a more permanent option since adding to the Minnesota Constitution or pulling language from it requires a majority of all votes cast in an election. While laws can be changed by a Legislature and governor, provisions of the Constitution are only altered when a majority of Minnesota voters agree.
Can a physician still conscientiously object to performing an abortion?
Fiebiger said physicians can object to performing a number of procedures, including abortion. And that wouldn’t change.
“There has never been any kind of situation where a physician had to perform any kind of service or procedure or consultation that was against their own conscience,” she said.