Preparing for a post-Roe nation

Opinion editor's note: Editorials represent the opinions of the Star Tribune Editorial Board, which operates independently from the newsroom.

•••

This country appears to be on the verge of losing a constitutional right of nearly a half-century standing — the right to choose an abortion, decided by Roe v. Wade in 1973.

The leaked draft of an opinion by U.S. Supreme Court Justice Samuel Alito uses sweeping and robust language to say Roe resulted from flawed reasoning and never met constitutional muster. If the draft stands, the intensely personal decision of whether to end a pregnancy would be thrown into the political vicissitudes of the states.

That has triggered a flurry of political and legislative activity, as Democrats and Republicans gear up for an epic, state-by-state battle over reproductive rights.

The Star Tribune Editorial Board has long supported women's right to choose and firmly restates that position today. There's a glimmer of hope that Chief Justice John Roberts is working toward moderating Alito's absolutist draft opinion, but if not the high court would strike down not just Roe but also jeopardize other case law rooted in the right to privacy that was the reasoning behind the court's 1973 ruling.

Minnesota is protected for now, thanks to a 1995 ruling by the state Supreme Court in Doe v. Gomez, which affirmed abortion rights and went further by finding that poor women could not be denied that right because they depended on government-funded health care.

That's a fairly high level of legal protection. Even if Republicans in Minnesota took the House, Senate and governorship in the coming election, they could do little to alter that. But there are other ways to limit access, including instituting more restrictions. The state already has a longstanding 24-hour waiting period and only doctors are allowed to perform the procedure.

The top Republican candidates for governor and attorney general all support bans or drastically increased restrictions. At the same time, DFL Gov. Tim Walz has pledged to protect abortion access, saying women should "make their own decisions about their own bodies on reproductive health."

But abortion politics does not fall strictly along party lines. As DFL House Majority Leader Ryan Winkler told an editorial writer, "The fact is, we've almost never had a pro-choice majority, and we don't today. We are a long way from a Minnesota Supreme Court that could overturn Doe v. Gomez or upending the statutory regulations we have in place right now, but it could happen. We're already on the verge of losing the most powerful protection of all, the U.S. Constitution."

Anti-abortion groups in Minnesota have been plain about their goals. Scott Fischbach, executive director Minnesota Citizens Concerned for Life and a veteran of legislative battles over the issue, said earlier this week that "getting rid of Roe v. Wade, and then Doe v. Gomez, will be big steps in the right direction for us … ."

If Republicans regain control of the House and retain the Senate this November, one nascent effort would be to put the issue to voters as a constitutional amendment in 2024. Moses Bratrud, of the Minnesota Family Council, an anti-abortion advocacy group, told KMSP-TV that "if Minnesotans want to change our abortion laws, then they'll vote for it. Pro-life groups in Minnesota are going to go to the courts, we're going to go to the Legislature, we're going to go to the governor, we're going to go to the people."

At the federal level, Minnesota Sen. Tina Smith told an editorial writer that she fears that rejecting Roe is "just step one." Next, she said, should Republicans control the Congress after midterms, could be an effort to launch a congressional ban on the procedure. That could take precedent over Minnesota's case law. Smith also said that because the Roe ruling was rooted in the right to privacy, other precedent-setting cases based on the same interpretation of the U.S. Constitution could also be in jeopardy.

Among those the most often cited as threatened are the right to birth control and marriage equality. Smith said that Senate Majority Leader Chuck Schumer plans to take a vote that will put every senator on record regarding reproductive rights. It is expected to fail, Smith said, "but it's important that we let people know where things stand because most Americans support abortion rights."

Sarah Stoesz, chief executive of Planned Parenthood North Central States, said in a conference call with Minnesota Attorney General Keith Ellison that, among other things, the state would have to brace itself for an uptick in abortions as women from surrounding states seek out the procedure. The increase could be as much as 25%, she said. North and South Dakota already have trigger bans in place that would take effect as soon as Roe is overturned, while Wisconsin would revert to a 19th-century law still on the books that bans most abortion.

It's important to remember that Alito's draft opinion, written in February, already may have been modified. Cooler heads who place a greater value on settled law may yet prevail, resulting in a narrower ruling. But it is clear now that women's fight for equality and control over their bodies is far from over.