Gender Justice opposes the "Pain-Capable Unborn Child Protection Act" (S.F. 1609)

Dear Chairman Limmer and Members of the Senate Judiciary and Public Safety Committee:

On behalf of Gender Justice, we write to provide legal context, background on constitutional law regarding abortion, and to express our opposition to S.F. 1609.

Gender Justice is a legal nonprofit (501c3) whose mission is to address the causes and consequences of gender inequality. We believe gender inequality hurts everyone and work to counteract the most harmful consequences of inequality by dismantling the gender-based barriers that prevent full participation in our economy and in our society. As a legal nonprofit, we are uniquely qualified to provide crucial legal analysis as it relates to this bill.

To be clear, the Minnesota Constitution protects both a woman’s fundamental right to an abortion and a woman’s decision to have an abortion.

Simply put, S.F. 1609 violates both our federal and state constitutions. In their 1995 ruling in Doe v. Gomez, the Minnesota Supreme Court not only affirmed that the United States Constitution affords a right to an abortion, they further determined that the Minnesota Constitution affords “…broader protection than the United States Constitution of a woman’s fundamental right…” to decide to obtain an abortion. To be clear, the Minnesota Constitution protects both a woman’s fundamental right to an abortion and a woman’s decision to have an abortion. The Minnesota Supreme Court makes clear that “…any legislation infringing on the decision-making process, then, violates this fundamental right [to abortion]”. By creating an arbitrary fixed gestational deadline by which Minnesota women would have to decide to obtain an abortion, S.F. 1609 not only demonstrates a fundamental lack of understanding of why a woman may seek an abortion after 20 weeks, but plainly violates the Minnesota Constitution by infringing on the decison-making process.

What’s more, the United States Supreme Court has made clear that viability is a relevant guidepost at which the state’s legitimate interest in the potential life of a fetus begins. In the 1992 Casey decision, the United States Supreme Court states “[b]efore viability, the State’s interests are not strong enough to support a prohibition of abortion”, reaffirming that states may not prevent a woman from terminating her pregnancy prior to viability. In their 1976 Danforth decision, the United States Supreme Court declared “because this point [of viability] may differ with each pregnancy, neither the legislature nor the courts may proclaim one of the elements entering into the ascertainment of viability – be it weeks of gestation or fetal weight or any other single factor – as the determinant of when the state has a compelling interest.”

By creating an arbitrary fixed gestational deadline by with Minnesota women would have to decide to obtain an abortion, S.F. 1609 not only demonstrates a fundamental lack of understanding of why a woman may seek an abortion after 20 weeks, but plainly violates the Minnesota Constitution by infringing on the decision-making process.

Finally, in Doe v. Gomez, the Minnesota Supreme Court established that restrictions on abortions are subject to strict scrutiny — meaning the state bears the burden of proof to show that any laws creating restrictions on abortion must be necessary for a compelling state interest. This is the highest legal standard a court can apply, and much higher than the federal standard, which prohibits laws that create an undue burden to abortion access. As the United States Supreme Court has established that no single factor, like weeks of gestation, can determine that the state has a compelling interest, we cannot overstate how brazenly S.F. 1609, which bans abortions after 20 weeks, disregards the United States Constitution, the Minnesota Constitution, and decades of constitutional interpretation by both the United States and the Minnesota Supreme Courts. Indeed, this bill also creates a fund dedicated to covering the extensive legal costs the state would likely incur with this bill’s passage should give this committee pause; S.F. 1609 is so clearly unconstitutional that even the bill author can foresee the costly litigation.

As questions of constitutional violations are squarely within the Senate Judiciary and Public Safety Committee’s jurisdiction, we urge you to apply an understanding of our United States and Minnesota constitutions, which clearly establish both a constitutional right to an abortion and Minnesotans’ right to decide to have an abortion, and respectfully ask you to vote against S.F. 1609.

Respectfully,

Megan J. Peterson, Executive Director

Gender Justice