LEGAL LIMBO: THE STATE OF ABORTION CARE FOR MINORS IN MINNESOTA AFTER DOE v. STATE OF MINNESOTA
By: Mary Fleming, Volume 107 Staff Member
Even before Dobbs v. Jackson Women’s Health Organization brought abortion to center stage at the U.S. Supreme Court, Minnesota abortion law was being litigated in state court. In May of 2019, two advocacy organizations, the Lawyering Project and Gender Justice, filed a complaint in the Second Judicial District of Minnesota on behalf of two abortion care providers. The complaint challenged a slew of abortion restrictions in Minnesota. The subject of this Post is the two-parent notification law, which required abortion providers to notify both parents of a minor seeking an abortion and observe a forty-eight hour waiting period prior to performing the procedure. In Doe v. State of Minnesota, the court found the two-parent notification law unconstitutional under the Minnesota Constitution and permanently enjoined the statute. This Post will explore that ruling and its implications for abortion care for minors in Minnesota moving forward.
I. DOE PERMANENTLY ENJOINED THE TWO-PARENT NOTIFICATION LAW
Dr. Jane Doe and Mary Moe (both pseudonyms) filed suit against the state of Minnesota challenging various abortion restrictions in the state. One challenged restriction was the two-parent notification requirement, which required a provider to notify both of a pregnant minor’s parents and observe a forty-eight hour waiting period after the notification and prior to an abortion procedure. The district court explored two constitutional challenges to the law: privacy and equal protection, both of which are rights enshrined in Article I of the Minnesota Constitution.
The court analyzed the privacy claim under strict scrutiny because the law interfered with the fundamental rights to obtain an abortion and to decide to terminate a pregnancy via abortion, both established in Doe v. Gomez, a precedential Minnesota Supreme Court case from 1995. Relevant to that determination, the court discussed various reasons why a minor may not be able to involve their parents, such as fear of abuse or abandonment and the reality that not all adolescents have access to their parents. Additionally, the court recognized that the forced delay from parental notification and the mandatory waiting period imposed obstacles that interfered with a person’s access.
The court’s analysis for the equal protection claim focused on whether minors who seek abortion care were “similarly situated” to minors who choose to carry a pregnancy to term. The court determined that they were. The court emphasized that minors are capable of medical decision making and are allowed to consent to similar procedures, such as giving birth and a Cesarean section, without parental notification. Because the law only applied to this one specific procedure, it resulted in unequal treatment of minors who choose to carry a pregnancy to term and minors who choose to terminate. Additionally, the court reiterated the trial court’s determination that abortion is safer for minors than giving birth, as further reason that a double standard was not appropriate.
On July 11, 2022, the court granted Doe and Moe’s motion for summary judgment on both claims, declared the two-parent notification law unconstitutional, and permanently enjoined its enforcement.
II. UNCERTAINTY IN FUTURE ABORTION CARE FOR MINORS
The permanent block on the two-parent notification law leaves Minnesota without a clear legal scheme for abortion care for minors. This decision makes clear that the state cannot force a physician to notify both of a minor’s parents. However, that leaves many alternatives that have not been considered. Can the state implement a new law that requires notification to only one parent? What about a law requiring parental consent instead of mere notification? Does the law automatically revert to minors being able to make decisions?
The legislature tried to account for this scenario in the statutory scheme. Under Minnesota Statute § 144.343, subdivision 6, if the two-parent notification law were “ever temporarily or permanently restrained or enjoined by judicial order,” a new framework would automatically kick in. That framework allowed the minor to choose not to notify their parents only if a judge determined that the pregnant minor was “mature and capable” enough. Otherwise, the decision to abort would lie with the judge. However, this subdivision was also declared unconstitutional in the summary judgment order. Therefore, there is no statutory answer to these questions.
The possibility of a new legislative standard cannot be ruled out. Even when parental notification laws have been struck down in other states, that has not always guaranteed that minors are free from the parental notification barriers. In both Florida and Massachusetts, parental notification laws were found unconstitutional, but parental consent is still required. If Minnesota were to follow suit and pass a statute, that would control. However, until that happens, there is no definite direction.
The answer that seems to be suggested by the summary judgment order is that a minor should have full autonomy to choose to terminate a pregnancy. Because the court determined that requiring notification for minors who choose to terminate a pregnancy but not for minors who choose to carry a pregnancy to term was unequal treatment, it would follow that both should be held to the same standard. However, this interpretation is limited by the fact that the original legislative intent was to exclude abortion from conditions “associated” with pregnancy. It is unclear if the judge’s opinion is enforceable, so the state is again left without a clear answer.
There is also the possibility that a provider will seek consent from at least one parent. There are multiple reasons a provider may do this. For one, the lack of clear statutory direction may make a provider revert to the typical standard of medical care for minors, which is to obtain informed consent from a parent. Additionally, the American Medical Association’s Code of Medical Ethics directs a physician to inform a parent or guardian in serious situations, which could be interpreted to include abortion. Erring on the safe side is a common approach used by physicians in response to confusing abortion laws. Similarly, a provider may seek parental consent out of fear of legal repercussions. When there are unclear laws, such as in this situation, providers may choose to take extra caution to protect themselves from legal liability. A third potential motivating factor is a provider’s personal opinion on abortion. A provider who does not believe in abortions may seek parental consent as a way to discourage the patient from making the choice to terminate. In an ideal world, a provider’s politics would not impact their care, but there is ample evidence that a provider’s abortion stance can impact their work. Regardless of the reason, there is a real possibility that providers will turn to parental consent.
The requirements of a minor seeking an abortion in Minnesota are unclear. Two-parent notification is unconstitutional, but there remains the question of what the correct legal standard to apply under these new circumstances is. Until either the Minnesota Legislature or the courts answer this question, minors seeking abortion care may still face obstacles to abortion access.
 See Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022); Doe v. State, No. 62-CV-19-3868 (D. Minn. July 11, 2022).
 Complaint, Doe v. State, No. 62-CV-19-3868 (D. Minn. May 29, 2019).
 Minn. Stat. § 144.343, subdivs. 2-6.
 Doe, slip op. at 103, 109.
 Complaint, supra note 2, at 13–38. The complaint challenged ten restrictions in addition to the two-parent notification requirement: (1) the “physician-only law” which prohibited advance-practice clinicians from providing abortions (Minn. Stat. § 145.412, subdiv. 1(1)); (2) the “hospitalization requirements” which required all abortions after the first trimester to be performed in a hospital or abortion facility (Minn. Stat. § 145.412, subdivs. 1(2), 3(1)); (3) the “reporting requirements” which required the physician or facility who performed the abortion to report detailed information to the Health Commissioner (Minn. Stat. §§ 145.413, 145.4131, subdiv. 1(b)(1)–(12), 145.4132, 145.4134, 145.4246, subdiv. 3; Minn. R. 4615.3600); (4) the “felony penalties for regulatory infractions” which made performing an abortion in a manner inconsistent with state regulations a felony (Minn. Stat. § 145.412, subdivs. 1(3), 4); (5) the “mandatory disclosure requirements” which required providers to tell the patient various things about the fetus’s health and potential support for the baby after birth (Minn. Stat. § 145.4242); (6) the “physician disclosure requirement” which required certain disclosures come only from a licensed physician (Minn. Stat. § 145.4242(a)(1)); (7) the “mandatory delay requirement” which required a provider to delay an abortion procedure for at least twenty-four hours after the mandatory disclosures were made (Minn. Stat. § 145.4242(a)(1)–(2)); (8) the “felony penalties for failure to obtain informed consent” which made it a felony for an abortion provider to perform the procedure without a full explanation of the procedure and its effects (Minn. Stat. § 145.412, subdivs. 1(4), 4); (9) the “fetal tissue disposition requirement” which imposed civil and criminal penalties for disposing of fetal tissue without cremation or burial (Minn. Stat. §§ 145.1621–145.1622; Minn. R. 4675.2205); and (10) the “ban on advertising of STI treatments” (Minn. Stat. § 617.28). An in-depth discussion of each challenge is beyond the scope of this Post.
 Minn. Stat. § 144.343, subdivs. 2-6.
 Doe, slip op. at 95; Minn. Const. art. I, §§ 2, 7, 10. Section 2 of the Minnesota Constitution states in part: “No member of this state shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers.” Section 7 states in part: “No person shall . . . be deprived of life, liberty or property without due process of law.” Section 10 states in part: “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated . . . .”
 542 N.W.2d 17, 31 (Minn. 1995); Doe, slip op. at 95–99.
 Doe, slip op. at 98–99.
 Id. at 99.
 Id. at 45, 104 (“A party must establish that he or she is similarly situated to persons who have been treated differently in order to support an equal protection claim.”) (internal quotations omitted) (quoting In re Welfare of the Child of R.D.L., 853 N.W.2d 127, 132 (Minn. 2014)).
 Id. at 104–05.
 Id. at 23–24. This is based on the provisions of Minn. Stat. § 144.343, subdiv. 1, which states that, “[a]ny minor may give effective consent for medical, mental and other health services to determine the presence of or to treat pregnancy and conditions associated therewith, venereal disease, alcohol and other drug abuse, and the consent of no other person is required.”
 Id. at 103–09.
 Id. at 107.
 Id. at 2–3, 103, 109.
 Minn. Stat. § 144.343, subdiv. 6.
 Doe, slip op. at 3 (invalidating Minn. Stat. § 144.343, subdivs. 2–6, which includes the new framework).
 See generally N. Fla. Women’s Health & Counseling Servs., Inc. v. State, 866 So.2d 612 (Fla. 2003); Planned Parenthood League of Mass., Inc. v. Attorney General, 677 N.E.2d 101 (Mass. 1997); Parental Involvement in Minors’ Abortions, Guttmacher Inst. (Nov. 1, 2022), https://www.guttmacher.org/state-policy/explore/parental-involvement-minors-abortions [https://perma.cc/EDE4-32M9].
 See generally Minn. Stat. § 144.343, subdivs. 2–6 (differentiating the abortion procedure from those conditions associated with pregnancy described in subdivision 1).
 See Elisabeth Klarqvist, Minors’ Consent for Health Care, Minn. H. Rsch. (Sept. 2022), https://www.house.leg.state.mn.us/hrd/pubs/ss/ssminorhc.pdf [https://perma.cc/3MHN-N5T4] (stating that a minor must have parental consent to receive health care services in Minnesota, except in certain situations).
 See Confidential Health Care for Minors, Code of Medical Ethics Opinion 2.2.2, Am. Med. Ass’n, https://www.ama-assn.org/delivering-care/ethics/confidential-health-care-minors [https://perma.cc/LQ29-9JEJ].
 See, e.g., Tanya Albert Henry, Ambiguous Anti-Abortion Laws Are Putting Patients at Risk, Am. Med. Ass’n (Sept. 16, 2022), https://www.ama-assn.org/delivering-care/population-care/ambiguous-anti-abortion-laws-are-putting-patients-risk [https://perma.cc/FR6Z-SXSB] (discussing various ways in which abortion providers are limiting their care in response to the Dobbs decision).
 See, e.g., Abortion Refusal Laws, NARAL Pro-Choice Am., https://www.prochoiceamerica.org/issue/abortion-refusal-laws [https://perma.cc/PEC6-Z286] (discussing laws which allow providers to refuse reproductive care to their patients).