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While supporters of reproduction rights here in Minnesota are outraged by the U.S. Supreme Court decision Friday abolishing any federal constitutional right to an abortion in the Dobbs v. Jackson Women's Health case, many feel secure that abortion rights will continue to survive in Minnesota because of the recognition of those rights under the state Constitution.
But they ought to wipe that "what, me worry?" look from their countenances.
The comfort zone in Minnesota stems from the ruling in 1995 by the Minnesota Supreme Court in Doe v. Gomez recognizing the implicit, but unwritten, right of women under three different provisions of the state Constitution to make "a private decision" to have abortions as a "fundamental right of privacy," independent from and even broader than the procedure's permissibility under the federal Constitution as a result of the high court's ruling in Roe v. Wade 22 years earlier.
Because of that state court ruling, by a decisive 6-1 vote, reproductive rights adherents have taken on that contented visage of MAD magazine's Alfred E. Neuman character. Anticipating the Roe reversal following the leak of the draft opinion last month, they even have been promoting Minnesota as an abortion rights haven for women from other states with more restrictive prohibitions.
But a ruling last week by the Supreme Court in Iowa ought to make them worry.
In a decision issued a week before the Dobbs ruling, the Supreme Court of the Hawkeye State , in a case titled Planned Parenthood v. Reynolds, overturned its own four-year-old precedent recognizing abortion rights under its state constitution. In that prior case, the Iowa court had ruled, like the Minnesota case 23 years earlier, that the state constitution affords women the right to abortion irrespective of the federal Constitution and Supreme Court rulings under it.
But that is no longer the case there. As a result of the change in the composition of the court, giving it a conservative majority, the 2018 precedent was discarded. Instead, the court, by a 4-3 vote, ruled that "a woman has no fundamental right to terminate a pregnancy" in Iowa, explaining that no "privacy" rift exists in the state's constitution.
Much like the Dobbs case decided a week later by the justices in the nation's capital, the majority of the Iowa justices deemed the prior decision to be "one-sided [and] unsound," and due to these deficiencies, refused to "blindly follow" precedent. Similar phrases and underlying concepts are embodied in the federal high court's Dobbs decision from Mississippi, which deemed the Roe abortion case authored by Justice Harry Blackmun in 1973 and joined by six other jurists, including his Minnesota "Twin" Warren Burger, the conservative chief justice, to be "egregiously wrong" due to its "exceptionally weak" reasoning.
The Iowa model overturning precedent upholding abortion rights could be emulated here in Minnesota, depending upon developments at the ballot box this fall.
An attempt to put before the voters an amendment to the Minnesota Constitution to ban abortion will not occur if the DFL Party maintains control of at least one house of the Legislature. But the Republican-nominated candidate for governor, Dr. Scott Jensen, like other GOP gubernatorial aspirants, has expressed opposition to abortion rights, going so far as to mention a Texas-like law banning abortions after six weeks and empowering private vigilante lawsuits by private citizens. That law in Texas has effectively negated abortions there.
If Republicans were in the majorities in both houses of the Legislature, the GOP could place a ballot proposition before the voters to repeal the state constitutional right of abortion. Even if Gov. Tim Walz — an abortion rights supporter — remains in office, he could not prevent it, because governors have no official role in the process of amending the state Constitution.
But even without a change to the Constitution, abortion rights could be undermined or abrogated if Jensen were elected and had the opportunity to fill vacancies on the state Supreme Court, the same process that resulted in the Iowa ruling. Those appointments are solely in the discretion of the governor, unlike the Senate confirmation process for the federal judiciary.
The current composition of the Minnesota Supreme Court consists of at least four jurists, all DFL gubernatorial nominees, who seem to be solid supporters of abortion rights, and possibly at least one or two others. None is close to the mandatory retirement age of 70.
But, even with good health and longevity, the stability of that court cannot be relied upon as a fortress for abortion rights in Minnesota. Judges move on, sometimes to other positions, or for early retirement, or to voluntarily step down for private practice, or to ascend to different tribunals in the federal system, something that's happened with two Minnesota Supreme Court judges in recent years.
If given the chance, Jensen as governor could substantially change the composition of the state Supreme Court. A different composition of the court could overturn the state's longstanding Doe ruling by pointing to the absence of any express language regarding abortion — or even privacy — in the state Constitution, which was a vital basis for the abortion reversal decisions by the Supreme Court on Friday and by the Iowa jurists last week.
While this is all somewhat speculative, Minnesota is not immune from such developments and, as reflected in neighboring Iowa, no state can be considered impenetrable from an assault on — or indeed, the repeal or reversal of — reproductive rights these days. It may not happen here, but supporters of abortion rights — women and men alike — need to wipe that Neuman-like nonchalance from their faces and get mad about the threat to reproductive freedoms.
Marshall H. Tanick is a Twin Cities constitutional law and employment attorney.
