Some DFLers want to ensure there are no legal restrictions on late-term abortions in Minnesota

As Minnesota Democrats move quickly to adopt a bill that would cement the right to an abortion in state law, Republicans have accused them of allowing late-term abortions, up until the moment of birth.

It’s an argument the DFL has painted as hyperbolic and misleading. Democrats say the Protect Reproductive Options Act — or PRO Act — only reinforces existing standards in the 1995 Minnesota Supreme Court ruling that established abortion rights and does not address time limits for the procedure.

State data also suggests late-term abortions are rare. The Minnesota Department of Health reported one abortion after 24 weeks of gestation in 2021 and 159 between 21 and 24 weeks. About 88% of the 10,136 abortions that year took place in the first trimester.

But there is a separate bill advancing at the Capitol that does strike at the center of a debate over abortions performed later in pregnancy. That legislation would lift a state ban implemented in the 1970s on abortions after a fetus is “potentially viable” unless a pregnant woman’s life or health is at risk.

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A federal court ruled the law was unconstitutional in 1976. But on the campaign trail in 2022, amid confusion over Minnesota abortion law and Republican criticisms of DFLers as extreme, Gov. Tim Walz suggested the viability standard still exists. And at the time, Walz expressed support for that viability standard — real or imagined.

The governor does not appear to stand by that assessment following his re-election. Repealing the viability standard would not change current law, said spokeswoman Claire Lancaster in a written statement. But the governor believes the repeal would codify an existing status quo, where late-term abortions have been uncommon because of medical practice.

The push to eliminate the viability standard illustrates the wide scope of DFL efforts to shed barriers to abortion.

Minnesota (probably) does not have a viability standard

The viability standard passed in the early 1970s  says abortions after a fetus is “potentially viable” are limited to when abortion is “necessary to preserve the life or health of the pregnant woman.”

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In law, the word “viable” was defined as being able to live outside the womb, even with artificial aid. But the statute 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, in 1976, said that definition presumed viability begins at the end of the 20th week, which was too early at the time for abortion limits under Roe v. Wade. In Hodgson v. Lawson, the law was struck down as unconstitutional.

This is where things get complicated. Last summer, in the chaotic aftermath of Roe being overturned, Minnesotans scrambled to better understand the state’s abortion laws. Some politicians, abortion groups and news outlets asserted Minnesota did have an enforceable viability standard. (In fact, the online directory Abortion Finder still says abortion is legal only until “viability.”)

And as Republicans like candidate for governor Scott Jensen argued the DFL was so extreme as to support abortion up until birth, the viability standard gave Democrats political cover. Walz told MinnPost through a campaign spokesperson in July that he supported the “timelines outlined by current law,” which he said the PRO Act would not change.

After more questions from MinnPost, Walz’s campaign said they “still share the providers’ understanding that current law sets the threshold at viability.” 

But legal experts believe the law is defunct — even after Roe was struck down — unless it is revived by legal action or by state lawmakers. And when UnRestrict Minnesota successfully sued the state last year to challenge a range of abortion limits like a parental notification law, the group did not ask the court to eliminate the viability standard because attorneys believe it had already been jettisoned. 

Now, as lawmakers advance a bill to repeal the viability statute, Walz spokeswoman Lancaster said the measure “would codify the legal framework that has been the status quo in Minnesota for decades” and not change any existing law or restrictions.

In other words, Walz is implying that there is no viability standard.

“The Governor firmly believes that medical decisions should be made between patients and their doctors,” Lancaster said.

Debate at the Legislature

So why would lawmakers want to repeal a defunct law anyway? 

House File 91 and the similar bill Senate File 70, would eliminate many restrictions on abortion in Minnesota law, most of which were struck down by a Ramsey County District Court judge last year in a case brought by UnRestrict Minnesota.

Sen. Erin Maye Quade, an Apple Valley DFLer and chief sponsor of SF 70, told reporters last week that with Roe gone, and after the Ramsey County ruling, the legal landscape may be confusing. Repealing many of the statutes would provide clarity on what laws are in effect and what are not, she said. State Sen. Kelly Morrison, DFL-Deephaven, said Monday the bill is “cleaning up” laws to make them consistent with court rulings.

But it goes beyond that. Morrison, a doctor who practices obstetrics and gynecology, said eliminating the viability standard also makes it harder for the law to spring back to life with legal or legislative action. “I think that’s part of the double layer of protection,” she said. “We don’t know how a future court might rule. We don’t know what a future Legislature might do.”

Morrison said late-term abortions are “exceedingly rare,” and people don’t seek them unless there are “extreme circumstances,” such as the health and well-being of a pregnant woman or a lethal anomaly in the fetus. Most wanted to be pregnant in the first place, she said. But even if there are exceptions in a viability standard for those types of circumstances, she said limits on abortion lead to a “chilling effect” on abortion even when necessary.

“Physicians are having to consult with lawyers before they’re able to offer appropriate medical care to their patients,” Morrison said. “That can further delay care and that can further endanger people’s lives.”

Viability is also not the same for every fetus, she said. Some 26 weeks into a pregnancy might have no chance of surviving, Morrison said.

Providers tend to hew toward a viability standard on their own, Morrison said. Minnesota has seen an uptick in the number of people seeking abortions in the second trimester, according to Planned Parenthood. And the similarly permissive Colorado reported 60 abortions after 24 weeks in 2021. Several major hospital systems didn’t address the question directly when asked last year by MinnPost. Still, Morrison maintains it would be difficult to find a medical professional to perform a late-term abortion outside of rare circumstances.

The measure nevertheless illustrates the expansive DFL agenda on abortion. Oftentimes on the campaign trail, the party said it was defending abortion access under threat by Republicans. Now DFLers have sprung into an offensive position, clearing away hurdles to abortion, some of which were approved with bipartisan support in a different era of Minnesota politics when many Democrats in rural areas opposed abortion.

Maye Quade’s bill is not moving as fast through the Legislature as the PRO Act. It’s unclear whether that’s because of any DFL opposition or just because lawmakers are juggling many priorities early in the legislative session.

Either way, Democratic abortion plans in general have drawn frustration from Republicans and anti-abortion activists and lawyers.

Rep. Anne Neu Brindley, R-North Branch, told reporters last week the GOP has tried to ensure “reasonable guardrails” on abortion. “The Democrats in the House of Representative believe that they have a mandate in place for the most extreme abortion policy in the world,” she said. “And that’s just not the case.”

Teresa Collett, director of the Prolife Center at the University of St. Thomas School of Law, said allowing post-viability abortions “converts the putative right to abortion into a right to kill.”

“Unborn children at the twenty-one-week mark are increasingly surviving premature birth and able to live outside the mother’s womb,” she said in written testimony for a House hearing Tuesday on the legislation.

Editor’s note: Walker Orenstein wrote this story. It was originally posted Jan. 24 on MinnPost.com.

Orenstein reports on the state Legislature for MinnPost, with a particular focus on covering issues affecting Greater Minnesota.

MinnPost is a nonprofit, nonpartisan media organization whose mission is to provide high-quality journalism for people who care about Minnesota.