How to win post-Roe legal battles for abortion: “People should feel like they have a voice”

It the wake of Dobbs v. Jackson Women’s Health Center, the Supreme Court case that overturned Roe v. Wade, a black cloud of fear and despair has billowed out over the country. Republican-controlled state governments have been competing with each other over who can pass the most sadistic abortion bans, while anti-choice activists gaslight the public over how serious the impact of such laws will be. The news is drowning in horror stories of child rape victims being denied abortion, miscarrying women being denied medical care and pregnant women being denied the right to divorce. Even for those of us who have covered the anti-choice movement for a long time and are aware that they’re motivated by cruelty and misogyny — not “life” — the viciousness towards women and girls has been harrowing. 

“I thought I was sufficiently cynical about the anti-abortion movement,” Michelle Goldberg of the New York Times wrote, “but I admit to being taken aback by this blithe, public disregard for the lives of women, including women suffering the loss of wanted pregnancies.”

As the years of Donald Trump have made crystal clear, Republicans cannot be shamed out of their tyrannical and cold-blooded impulses. That’s why decisions like Roe were so important: Only the law can check the authoritarian sadism. And now without Roe, it’s hard to know how to help those who need abortions.

That’s why it was such a thrill to get a text from Amanda Allen, who works for The Lawyering Project, the group founded by Stephanie Toti, the attorney who argued before the Supreme Court to secure the 2016 abortion rights victory in Whole Woman’s Health v. Hellerstedt. Full disclosure: Allen is a good friend of mine, which is why she was texting me to let me know she and her team had won a huge victory in the state of Minnesota. For Allen, a Minnesota native, it was especially sweet to do her part to help those still living where she grew up. While red states across the country debate how close to death a pregnant person must be in order to allow them to abort a failed pregnancy, in Minnesota, the state Supreme Court just struck down nearly every onerous abortion regulation, including needless waiting periods and age restrictions. In doing so, they helped make Minnesota a safe haven in the Midwest for abortion. 

“This idea that sending the abortion issue back to the states would simplify things was obviously a lie.”

This good news got lost in the melee of the current American news cycle. But that’s all the more reason to focus on those tendrils of hope we can grab onto, as well as opportunities to fight back against the rising tide of right-wing authoritarianism. 

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Salon spoke with Allen about how she and her team secured this victory in Minnesota, and why this kind of state and local action is crucial going forward in the fight for reproductive justice.

The transcript has been edited for clarity and brevity.

The Dobbs decision, which overturned Roe versus Wade is leaving a lot of people, I think, completely freaked out, wondering how bad this situation is going to get. And I know that there’s not a lot of clarity around that, but I want to ask you about what people can do on the state level to protect abortion rights. 

You’re absolutely right that this decision has created a huge public health crisis. And it’s also really sowed chaos because even in states where trigger bans haven’t taken effect yet, or abortion will still be legal in the short or long term, people don’t know what they’re allowed to do. People don’t know what they’re allowed to say. People don’t understand what their rights are. And that was really the point of this. This idea that sending the abortion issue back to the states would simplify things was obviously a lie.

It’s understandable that the people are, as you say, freaking out.

We are plummeting toward a place where abortion bans, in about half the country, are either already in effect or they’ll be taking effect in the coming weeks and months. What we’re really looking at now is action on the state level, either in the courts or in the legislatures. The goal needs to be to repeal restrictions in states where abortion will remain legal to make it less expensive, less onerous, less burdensome to get abortions in those access states. Or to pass laws or leverage state constitutions to expand access to abortion. Because that’s really kind of where we’re going to be at for many years.

You and the Lawyering Project secured a major victory for abortion rights in Minnesota. Can you tell me about that?

We filed this case a little over three years ago, on behalf of two healthcare providers, an abortion fund in Minnesota called Our Justice, and a congregation based in Minneapolis. We filed that case really under a very different set of political and legal circumstances, but we filed it purely under Minnesota law, which means that this case will always be insulated from whatever happens in the federal courts. We didn’t know that Roe was going to be overturned this year when we filed that case. But it underscores the importance of using a lot of different legal strategies, even when the federal courts may be more favorable to you.

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Our strategy, in this case, was to challenge the entire status quo of abortion access in Minnesota. A lot of people think of Minnesota as a purple state, maybe even a blue state in the Midwest. They are surprised to learn that Minnesota had a bunch of really harmful and burdensome restrictions on abortion access. Up until last week, Minnesota had a 24-hour delay law that forced people to wait 24 hours between getting a state-mandated lecture about why they shouldn’t get an abortion and actually obtaining care. Minnesota had a law that required adolescents to notify two parents before they could get an abortion or see a judge for permission to get the abortion without doing that.

At the same time, Minnesota has a very strong, constitutional protection for the right to abortion that was established in 1995. We wanted to leverage those protections to see what else we could eliminate from state law. 

“It underscores the importance of using a lot of different legal strategies, even when the federal courts may be more favorable to you.”

How successful were you in striking down some of these restrictions?

We were able to get almost every single law we challenged struck down: The 24-hour waiting period, and also the parental involvement law. We also were able to strike the physician-only law, which affected even medication abortion, which is just handing medications to a patient. Qualified advanced practice clinicians will now be able to provide abortion care in the state. There was a law that required second-trimester abortion care to be provided in hospitals. We were able to get that law struck down, as well as a whole host of state-mandated information that patients had to get before they could obtain an abortion. Providers were forced to talk about a bogus link between abortion and breast cancer, and infertility, telling patients that the “father” is liable for child support, to provide misleading, or in some cases, inaccurate or biased information to patients. The last law that we got struck down was the felony penalties for regulatory infractions. For example, if a clinic lost a signed consent form. No other kind of healthcare provider in Minnesota could be facing felony charges for essentially a paperwork error.

These laws not only made it harder to get an abortion, but they also had this chilling effect on providers wanting to enter the field of abortion care. That is going to be so much more crucial moving forward, now that the states surrounding Minnesota are going to be banning abortion — if they haven’t already.

Did you see the New Yorker article about Red River Women’s Clinic in North Dakota and how they’re going to hop across the river and set up shop in Minnesota?

I did.

In that part of the Midwest, the state borders there are transient. Everyone knows everyone when you live up north like that. It makes sense to me that a community-based health center would be able to move across the border. Now the laws that Red River will be looking at complying with are going to be radically different in Minnesota, compared to North Dakota.

As you said, a lot of people think of Minnesota as a purple state. Places like it, Pennsylvania and others where Democrats have a foothold will be so important to protecting abortion access. What would you like to see states that have the power right now do in order to make abortion more accessible?

Any legislative measures that they can take to further entrench the right to abortion in state law would be helpful.

A pro-choice governor can also do things like sure that providers aren’t prosecuted in the state, and people aren’t prosecuted for coming to the state for getting an abortion. Executive branches in those states, even if they don’t have the legislative backing, will be playing a critical role moving forward as well.

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Minnesota’s Constitution protected the right to abortion. How exactly did it do that?

The case that I mentioned earlier from about 30 years ago was called Doe v. Gomez. That case established the constitutional right to abortion under the privacy protections afforded under the Minnesota Constitution. In that case, it was a challenge to the state ban on using state dollars to fund abortion care. The argument was that the state was saying, “Well, if you’re a low-income Minnesotan, and you decide to carry your pregnancy to term, we will cover the cost of that pregnancy and of your childbirth expenses. But if you are a low-income Minnesotan and you decide to have an abortion, we won’t pay for it. And you’re out of luck.”

The Minnesota Supreme Court said that essentially put the state’s thumb on the scale. It violated the state’s constitutional protections of privacy, to a greater extent than that under the US Constitution. Relying on that case, we argued the state also put its thumb on the scale with these other restrictions. 

A lot of state constitutions have things like women’s equality, gender equality, privacy rights, explicitly outlined in them, unlike the U.S. constitution, right?

That’s right.

Are you guys exploring more opportunities to use those constitutional guarantees to force states to keep abortion legal?

We have to press forward wherever we can. And we are going to continue to fight for abortion access using any of the legal tools we can.

“They didn’t rest and eventually they got what they wanted. We have to approach this with the same sentiment.”

In addition to using courts, we also are going to be providing a lot of legal support to providers, to abortion funds, to practical support organizations. Because of the chaos that this decision has caused, people need information on what their legal rights are. What can they do that would put them at the lowest risk of being prosecuted or facing other legal liability? Providing that legal support is going to be really important, in addition to looking at places where litigation might be successful.

Some states they’re also trying to get legal abortion on the ballot, knowing that this is something that every time abortion is put up for a vote, people tend to vote for their rights. Between this legal strategy and the ballot strategy, how much should people feel like there are still options on the table, even in the face of this Supreme Court decision?

People should feel like they have a voice. Whether you’re in a state with a ballot initiative like Michigan or Kansas, where they’re trying to actually vote, they’re actually trying to amend the Constitution to explicitly carve out protections for abortion. There are a lot of ways that people can make their voices heard moving forward.

We have been fighting against an anti-choice movement that has not stopped, that has not been afraid of lawsuits, that has not been afraid of getting their laws blocked and struck down for half a century. We do need to bring that same tenacity and that same level of endurance, frankly, over the next half-century. They didn’t rest and eventually they got what they wanted. We have to approach this with the same sentiment.


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