August 17, 2022

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The Legal System

Does Minnesota law have a ‘viability’ threshold limiting abortion? Well, that depends

9 min read

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In Minnesota, abortions after the point when the fetus could be viable outside the womb can only be performed when a woman’s life or health is in danger. At least that’s a common interpretation from some politicians and abortion rights advocates.

The online Abortion Finder directory says if a pregnancy is at viability or past it — which the site says is usually around 24 to 26 weeks of gestation — a person must travel outside of Minnesota for abortion unless they meet a legal criteria for an exception. And the website for the Guttmacher Institute, an abortion rights advocacy organization, declares that in Minnesota “an abortion may be performed at or after viability only if the patient’s life or health is endangered.”

But there’s an issue.

There are viability restrictions in state law, yet several legal experts say they’re not enforceable because of a federal court order issued in 1976. So unless that decision is lifted, there is no viability standard in Minnesota. And while a Ramsey County judge on Monday struck down a long list of restrictions on abortion in Minnesota, the district court did not address any viability standard.

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That’s because the abortion access groups challenging limits didn’t sue over the viability law because they said it was already defunct.

But why do so many people think it exists? And why do so many providers of abortion act as if it does?

“It’s a mess,” said Laura Hermer, a professor at Mitchell Hamline School of Law.

The history of the viability standard

The U.S. Supreme Court’s landmark 1973 decision in Roe v. Wade outlined a right to abortion in the U.S. Constitution, but it did say states could limit abortion in the third trimester of a pregnancy. The following year, Minnesota lawmakers enacted some restrictions, passing a law that says abortions after a fetus is “potentially viable” must be performed at a hospital, and are limited to when abortion “is necessary to preserve the life or health of the pregnant woman.” The Minnesota law also says those abortions must be done in a way to “reasonably assure the live birth and survival of the fetus” — at least “to the extent consistent with sound medical practice.”

In law, the word “viable” was defined as being able to live outside the womb, even with artificial aid. But, crucially, the law also says a fetus in the second half of a roughly 40-week gestation period is considered “potentially viable.”

The federal 8th Circuit Court of Appeals took issue with that second phrase. In the case Hodgson v. Lawson, the court said the definition presumed viability begins at the end of the 20th week. This was too early for abortion limits, the court said, because 20 weeks falls within the second trimester of a pregnancy. Under Roe, the 8th Circuit court said second trimester restrictions were only allowed if they preserve and protect maternal health.

The 8th Circuit court concluded Minnesota law would not have violated the Constitution if the Legislature included only the first part of its viability definition, which does not reference the 20-week standard. But since the law does include a definition of potential viability that is at odds with Roe, the court said the statute was unconstitutional. The 8th Circuit ruling said the law requiring abortions after viability to be done in a hospital was acceptable.

What that means today

Hermer said she interprets the decision to mean state law does not limit abortions after viability. That opinion is shared by Teresa Collett, director of the Prolife Center at the University of St. Thomas School of Law, Michael Drysdale, an attorney for Dorsey & Whitney who has represented Planned Parenthood in cases in Minnesota and South Dakota, and by the abortion-rights nonprofits Gender Justice, NARAL Pro-Choice America and more.

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“We certainly believe those two provisions are unconstitutional,” said Jess Braverman of Gender Justice, referring to the viability ban presumed to be set at 20 weeks and the law requiring measures to “assure” live birth and survival of a fetus in post-viability abortion.

Braverman is one of the attorneys who challenged in court many abortion restrictions under the banner UnRestrict Minnesota. “There was kind of no reason to challenge that (because) there already is an injunction in place.”

The Legislature could pass a new law to create a viability standard, Braverman said. But it didn’t.

The Minnesota Supreme Court established a right to abortions under the state constitution in the 1995 case Doe v. Gomez. Any new viability law would likely have to survive a court challenge tied to Doe.

Collett, who has argued in favor of abortion restrictions in cases across the country, noted the Legislature passed a law in 2011 restricting abortion after 20 weeks, but it was vetoed by then-Gov. Mark Dayton.

House Speaker Melissa Hortman, a DFLer from Brooklyn Park, said she has been operating under the belief that Minnesota law does not restrict abortions after viability. That would put Minnesota in line with a handful of other states such as Colorado and New Mexico that don’t have enforceable statutory limits on late-term abortions.

It is possible, however, the 8th Circuit ruling could be read in a different way, Hermer said.

Someone could potentially argue the broad definition of viable — placing a limit at roughly 24 weeks depending on the circumstances of each pregnancy — might actually remain in law while the “potentially viable” definition of 20 weeks was struck down. In other words, only a narrow part of the statute the court found to be constitutional would survive under that interpretation, keeping viability standard more dependent on medical interpretation.

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To that point, the law, which was never repealed, is still being referenced by prominent officials. In late June, Gov. Tim Walz campaign spokeswoman Nichole Johnson said in a statement that the governor “supports the timelines outlined by current law.”

“The governor would sign the PRO Act, which would not affect the viability standard,” Johnson said, referring to legislation that says every person has a fundamental right to choose to get an abortion.

On Friday, in response to more questions about abortion law, another campaign spokesman said, “we still share the providers’ understanding that current law sets the threshold at viability.” 

Keaon Dousti, a spokesman for Attorney General Keith Ellison, said the AG couldn’t comment because the office has a “longtime policy of not offering interpretations of statutes that may be subject to litigation,” and Ellison has to defend the constitutionality of state law.

Providers stick to viability

Regardless, Hermer said health care providers are “super, super cautious” and averse to legal risks, meaning regardless of what the law says or doesn’t say, there are only very limited circumstances where a provider will do an abortion after what they determine to be viability.

“Most abortion providers of whom I am aware in Minnesota simply proceed as if they’re still in effect,” Hermer said of the struck-down laws.

State Rep. Kelly Morrison, a Democrat from Deephaven who is a practicing physician, said she believes Minnesota law is “pretty silent” on post-viability abortion. But she said it would be “exceedingly difficult” for someone to find a provider to perform an abortion later in a pregnancy unless there was an “extreme circumstance” that endangered a woman or if the fetus wasn’t viable.

“My understanding is that pretty much never happens in Minnesota,” she said.

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That may not be out of concern for state law exactly. Morrison said she believes “it’s more of a political consideration than anything,” and more of a “community standard of practice” than adherence to a potentially defunct law.

There is another statute impacting late-term abortions, “Born Alive Infant Protection Act,” which says another doctor should be available at an abortion after the 20th week of pregnancy. And that doctor must take “all reasonable measures” to preserve the life and health of any “born alive infant that is the result of the abortion.” Hermer said that law, which she said she’d consider less an abortion restriction and more a law governing what must happen in the event an infant is delivered alive, has not been challenged in court and is in effect.

Data on Minnesota abortions show abortions are rare after 24 weeks. The state reported only one of the 10,136 total abortions last year happened after 24 weeks. Minnesota health officials say it took place before the 30-week mark. The state reported 159 abortions took place between 21 and 24 weeks.

In 2021, about 69 percent of abortions happened at an estimated gestational age of less than nine weeks. About 88 percent happened within the first trimester.

Estimated fetal gestational age upon abortion in Minnesota, 2021

Source: Minnesota Department of Health Center for Health Statistics

Colorado reported 60 of 11,580 total abortions happened after 24 weeks last year. The circumstances of those abortions are unclear. Nationally, abortions at 21 weeks or later make up less than 1 percent of all abortions, according to 2019 federal data.

M Health Fairview, Allina, Hennepin Healthcare, HealthPartners and the Mayo Clinic did not directly answer questions about their interpretation of state law, or whether they had policies that govern when doctors can perform abortions.  In statements, they expressed support for the decisions patients and doctors make.

“We support our patients with compassion as they make decisions that are best for them and their specific situation,” says a written statement from Hennepin Healthcare.

Could the statute be revived?

If Minnesota’s viability statute was struck down completely for not complying with Roe, it raises the question: What happens now that Roe has been overturned? Does Minnesota now have an enforceable law that limits abortion at viability or even 20 weeks?

The state law was ruled unconstitutional not by Roe, but by the 8th Circuit ruling. A legal action of some sort would be necessary to revisit the 8th Circuit ruling, Hermer said.

Even then, Hermer said any viability law would have to be tested against abortion access rights in the Minnesota constitution outlined in Doe.

“Do they spring back into effect now that Roe is overturned?” Hermer said of the viability law. “I think the only way that we are going to find out is for there to be a legal challenge to that effect.”

Drysdale, the Dorsey & Whitney attorney, said the undoing of a precedent “doesn’t just undo everything that’s tied to it.” The Legislature would likely have to act to “bring it back to life,” he said. At that point, however, the Hodgson ruling would not be binding for lawmakers, Drysdale said. Collett said the AG could ask courts to lift an injunction but is unlikely to do so.

“There are lawyers who disagree about what it means when there’s an injunction,” Braverman said. “When a court declares something unenforceable, some lawyers say that law is still live, but you need to get the injunction lifted. Some lawyers would say that law is long gone at that point. And I don’t think it’s a clear cut.”

On Monday, Ramsey County District Court Judge Thomas Gilligan, Jr. invalidated most regulations and restrictions on abortion in the state, siding largely with Braverman and Gender Justice by saying they were violating the Minnesota Constitution.

The laws ruled unconstitutional included a 24-hour waiting period for adults to get an abortion and requirements that abortions be performed by physicians as opposed to other licensed medical professionals, and that providers give patients information about medical risks of abortion that the court said was inaccurate and confusing.

UnRestrict did not challenge the viability law because it believe it was already struck down. But Drysdale said under the legal interpretation of Doe laid out by the district court, it would be “hard to see” how the viability language wouldn’t violate the Minnesota Constitution.

It’s unclear if Ellison, who is defending the state against UnRestrict’s lawsuit, will appeal the district court ruling. While abortion access groups celebrated the ruling as protecting access to a right, anti-abortion politicians and organizations said it was extreme in its scope.

“Given the sweeping interpretation of Doe v. Gomez by this district court, the real question would be would the viability ban if resurrected even partially … would the Minnesota Supreme Court find that also unconstitutional,” Collett said.

MinnPost staff writer Peter Callaghan contributed to this report

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