Saturday, January 22nd, 2011 is the 38th anniversary of the Supreme Court's decision in Roe v. Wade. In the past few years, a woman's right to choose whether and when to bear a child has become increasingly threatened by federal and state laws, clinic harassment, and provider violence. Because the "right to choose" depends on many factors, RH Reality Check is publishing a series of articles on abortion providers, state laws, and other threats to women's fundamental rights under Roe.
As we once more celebrate the anniversary of Roe v. Wade, the Supreme Court case which upheld the constitutional right for every woman to control whether or not she has a child, women’s reproductive rights seem more in jeopardy than ever before. Multiple anti-abortion restrictions have passed in the states within just the last year, each of them attempting to chip away at precedent by inhibiting a woman’s ability to easily access early abortion, adding to the costs of the procedure, even changing the timeline for legal access from viability of the fetus to an arbitrary point a few weeks earlier.
Each new regulation has been passed with two purposes – to block a woman’s ability to obtain a legal procedure in a reasonable and physically safe way, and to try and find a court case that can be used to challenge the settled law of the land.
For those of us in Minnesota, we have always been able to breathe a little easier when it comes to the legal right to an abortion. In Minnesota, we have our own precedent-setting court case – Doe v. Gomez – which serves as the benchmark of abortion law.
Doe v. Gomez established a woman’s right to chose in 1995 when the state supreme court ruled that the state cannot selectively cover pregnancy-related services by funding prenatal care and childbirth expenses while refusing to cover abortion services. Such support would be an implicit denial of a woman’s right to chose to carry a child to term or not. Not funding abortion services, for example, then burdens low-income women with “undue financial constraints,” eliminating choice simply based on economic status.
Because of the ruling, Minnesota has been able to use Medicaid funds to allow low-income women to obtain the procedure, despite the Hyde Amendment’s federal rules regarding funding abortion with public money. This aspect of the ruling has infuriated local social conservatives for years, causing local anti-choice groups like Minnesota Citizens Concerned for Life (MCCL) to introduce the “Taxpayer Protection Act” nearly every year since the case was settled. Each year the bill has been struck down by pro-choice members of the House and Senate, who held a majority of seats in the legislature.
Now, they don’t.
For the first time in recent history, both the Minnesota House and Senate have anti-choice majorities. The current president of the Senate, Republican Senator Michelle Fischbach, is the wife of Scott Fischbach, the executive director for MCCL. The atmosphere in Minnesota has never been more hostile to women's rights.
There are two ways that Doe v. Gomez could be overturned: by legislation or by amendment. Should anti-choice legislators decide to push for an “end taxpayer-funded abortions” bill this session, they likely have more than enough votes to pass it. Although newly elected Governor Mark Dayton, a pro-choice Democrat, would likely veto the bill, there may not be enough legislators left to block a veto override. The bill, a direct challenge to Doe, would then be reviewed by the courts, which has shifted far to the right after eight years of appointments by two-term Governor Tim Pawlenty, a staunch Republican.
Megan Peterson, Deputy Director of National Network of Abortion Funds, would not be surprised to see a bill proposed and passed through the House and Senate this year.
“There is a ripe environment for action in this state to try and get rid of Doe v. Gomez due to the discussion nationally around abortion coverage in health care reform. Although an all-out ban on abortion coverage in health care reform was avoided to secure passage, Congress included the Nelson Amendment which will still create significant barriers to abortion coverage, and President Obama reaffirmed the Hyde Amendment which bans federal funding of abortion care through Medicaid."
“We have seen MCCL and anti-abortion activists repeatedly put forward the Taxpayer Protection Act, and each year they pick up a few more votes," she added. "Last year it was the closest it’s ever been. The debate over health care reform has just added more fuel.”
Overturning Doe v. Gomez is more than just a matter of funding for abortion, however. The ruling provides a constitutional right in Minnesota for all women to have access to an abortion. Should one of myriad court challenges ever be successful at taking down Roe v. Wade, Minnesota has its own version to assure the procedure is not outlawed in the state. If Doe is overturned first, women will be cut off all together.
If we lose Doe v. Gomez, that means that if Roe v. Wade is lost, we could then lose abortion rights across the state. And that is the real plan of anti-abortion activists, wrapped in the guise of “protecting taxpayers” who don’t support reproductive rights.