Abortion bills pass committee, could trigger Supreme Court challenge

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A pair of anti-abortion rights bill are moving through the Minnesota House and Senate this week. On Tuesday, a Senate committee passed a bill to ban abortion at 20 weeks gestation. And in the House and Senate a bill to ban taxpayer funding for abortion was passed out of committee. It was clear from testimony on both sides of the debate that Minnesota Citizens Concerned for Life and Republican lawmakers are seeking a high-profile lawsuit on the issue of abortion, and the bill to ban taxpayer funding for abortion is structured so that a challenge would go directly to the Minnesota Supreme Court.

Senator Dave Thompson, R-Lakeville, introduced the bill to ban taxpayer funding for abortion.

“This bill would grant original jurisdiction to the Minnesota Supreme Court for any challenge,” he said. Thompson’s bill is aimed at challenging the 1995 Minnesota Supreme Court decision, Doe v. Gomez, which overturned a very similar law that prohibited low-income women from using state-sponsored health insurance to cover abortions. But, he said, it is not a challenge to the U.S. Supreme Court ruling in Roe v. Wade.

“It does not in any way challenge the holding or the reasoning in the 1973 court case Roe v Wade,” he said. “While I do disagree with that, it does not in any way touch the conclusion or the rationale of that decision and would not in any way alter or change a woman’s right to seek abortion services.”

He added, “It is not right for the public through their taxpayer dollars to have to fund abortions, which a large portion of Minnesotans find to be an immoral or an improper way for people to conduct themselves.”

Jordon Bauer of Minnesota Citizens Concerned for Life told the committee, “State tax money is used for a lot of great things, but in recent years our taxpayer dollars have been diverted to the purpose of killing unborn children.”

She cited polling data showing widespread public disapproval for taxpayer-funded abortion services. “A 2010 poll of the 8th Congressional District found that 73 percent oppose using tax dollars to pay for abortions. These results are consistent with other state and national polling,” said Bauer. “Minnesota taxpayers, a strong majority of whom don’t want their tax dollars going to abortion, have essentially helped to end the lives of 55,000 Minnesotans.”

The poll cited by Bauer was done by one of the country’s largest political groups opposed to abortion rights, the Susan B. Anthony List. The poll was conducted as part of a campaign to unseat Rep. James Oberstar, a DFLer who opposed such rights but supported President Obama’s health care reform proposal. SBA List went after Democrats in districts with a high “pro-life” bent and claimed that the Affordable Care Act would fund abortions, which it does not.

But, the SBA List polling in the 8th District is somewhat in line with national polling on taxpayer funding for abortion. The religious right group Family Research Council conducted a poll in 2008 that showed 56 percent of voters would not vote for a candidate who supported taxpayer funding for abortion, and a 2009 CNN poll found 61 percent of opposed using “public funds for abortions when the woman cannot afford it.”

Raleigh Levine of the William Mitchell College of Law testified that the bill, if it became law, would likely be ruled unconstitutional.

“SF103 bars funding for abortions even if they are the result of rape or incest, even if they are medically necessary, even if the mother’s own life would be put at risk if she continued her pregnancy or gave birth,” she said. “The bill would thus elevate potential fetal life above its mother’s own life. Even were abortion to be viewed as legally equivalent of homicide – the law has always viewed homicide as justified when in self defense – a mother need not and should not sacrifice her own life for her potential child’s.”

She added that the Minnesota Supreme Court would have to overrule its own decision in order for the law to stand.

Sen. Linda Berglin, DFL-Minneapolis, was concerned about that lawsuit. “There are some of us on this committee that don’t support this bill,” she said. “Poor women who cannot make their own choice about their health care end up relying on public assistance in other ways.”

She continued, “We have not funded subsidies for adoption, funding counties adequately to help women get off of public assistance by seeking employment. We have not funded health care for poor children who are born into poor families. So at this time to have a bill put forward that will cause a lawsuit, will cause the expenditure of state funds to defend the state constitution, is ill advised.”

That advice went unheeded, and the bill passed the committee on a voice vote.

Directly following that bill came another intended to curtail abortion rights. Sen. Gretchen Hoffman, R-Vergas, introduced a bill that would ban all abortions 20 weeks after conception based on the assumption that fetuses feel pain at 20 weeks.

MCCL’s Andrea Rau said, “There is consensus that the unborn child after 20 weeks of conception can feel pain and these findings have been backed up with abundant written documentation.”

She continued, “This legislation is not about whether or not women have a right to abortion, rather this legislation is about whether or not an unborn child that is developed to the point it can feel pain deserves the respect and dignity we offer to all members of the human family.”

“We are performing abortions on viable babies here in Minnesota,” she said, while holding up tiny diapers.

Sen. Berglin asked that the defense of the bill be provided by the legislature to the attorney general for the extra expense of defending the bill. The bill would set up an account to provide for the legal defense of the bill, including donations as well as taxpayer funds. Contradicting Rau’s claim about “consensus,” she also noted that the science behind fetal pain is not settled.

Levine of the William Mitchell College of Law also noted that the 20-week abortion ban would also be constitutionally suspect.

“SF649 violates the Minnesota Constitution’s privacy right as interpreted by the Minnesota Supreme Court and also violates the federal privacy right as interpreted by the United States Supreme Court in Roe v. Wade,” she said. “The bill bars non-medically necessary abortion starting at 20 weeks, thus violates both the state and federal constitutions.”

She said those courts would have to overrule decades of their own procedural law.

Linnea House of NARAL Pro-Choice Minnesota spoke in opposition to the bill. She talked about a situation in which a woman pregnant with twins had complications and if the birth was carried to term, both fetuses would die, but if one was aborted the other would live. The family chose to have the abortion and the remaining twin survived. Under the proposed bill, both fetuses would have died because the abortion would be prohibited.

She also said the bill was troubling because it lacks an exception for rape or incest.

“Women facing difficult and sometimes tragic complications in their pregnancies need to be able to make the best decision for this based on their medical condition, the recommendation of their doctor and the beliefs of their family,” House said. “I trust women to make these decisions, and you should too.”