Minnesota Attorney General Keith Ellison (D) has announced he will not appeal a District Court decision that struck down several abortion laws in the state, including 24-hour waiting periods, informed consent, two-parent notification, and a mandate that only physicians can perform abortions.
In a ruling earlier in July, a Ramsey County District Court ruled those restrictions unconstitutional. The ruling cites a 1995 Minnesota Supreme Court ruling that says access to abortion is a constitutional right and extended those rights by removing those specific restrictions.
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The statement from Ellison was made along with Governor Tim Walz (D), the Department of Health, the Board of Medical Practice, and the Board of Nursing. Ellison says the attorney general must consider broad public interest in deciding whether to appeal cases.
“After three years of litigation in which my office and I thoroughly, vigorously, and faithfully defended the constitutionality of several state laws that regulate abortion, and after long and careful consideration of the district court’s ruling and consultation with each of my co-defendants, I have decided not to appeal in the case of Doe vs. Minnesota.”
Ellison also says the attorney general’s office has already spent more than 4,000 hours and $600,000 in defending these laws, and that appealing the case is not “a proper or prudent use of limited state resources.”
WCCO Radio political analyst Blois Olson says the decision not to appeal puts even more of a spotlight on the race for attorney general which Olson says will be very competitive.
Ellison has two Republican challengers in Jim Schultz and Doug Wardlow, both of whom have promised to fight against Minnesota’s right to abortion. Olson says Republicans are sure to be critical of Ellison’s decision.
“Republicans are going to highlight this,” says Olson. “It'll certainly be an issue in Ellison's race, but it also points out yesterday's decision by Doug Wardlow to go after his fellow Republican Jim Schultz on the issue of abortion. Once again, abortion will remain one of the top five issues in Minnesota in 2022.”
On Wednesday, Wardlow attempted to frame his primary battle against GOP-endorsed candidate Jim Schultz as a battle about abortion, saying Schultz was “in essence pro-choice” because he hadn’t been zealous enough in how he would use the office of attorney general to strengthen abortion laws.
In a tweet, Schultz says this is a “dereliction of duty” by Ellison.
“Yet another dereliction of duty by Keith Ellison. All motivated by his far-left politics. These bi-partisan statutes are clearly constitutional and Minnesota deserves an Attorney General who will stand up to activist judges,” Schultz said.
Olson also says this move by Ellison is sure to energize his base heading into the midterms.
“This signals that the attorney general really understands abortion, and the laws and restrictions around it, are key to Democrats this year,” explains Olson.
Here is Attorney General Keith Ellison’s entire statement:
After three years of litigation in which my office and I thoroughly, vigorously, and faithfully defended the constitutionality of several state laws that regulate abortion, and after long and careful consideration of the district court’s ruling and consultation with each of my co-defendants, I have decided not to appeal in the case of Doe vs. Minnesota.
As Minnesota’s attorney general, I must consider the broad public interest in deciding whether to appeal any court outcome, including rulings related to the constitutionality of state laws. The public interest includes a number of factors, including the likelihood of success of an appeal, the proper and careful use of state resources, the impact on other areas of state law, and the public’s need for finality.
In my estimation, we are unlikely to obtain a different result through an appeal. At most, an appeal would remand the case to the district court for a bench trial in front of the same judge, where the State would once again be unlikely to prevail for the reasons the court outlined in its July 11 ruling. In addition, one of the State's experts concluded that the challenged laws did not materially impact abortion rates in Minnesota, suggesting they were not achieving the policy goals set by the Legislature. Furthermore, the district court’s ruling has no impact on the constitutionality of any other types of state laws that my office might be called upon to defend. For these reasons — and in the context where my office alone has already spent more than 4,000 hours and $600,000 in defending these laws — appealing the case is not a proper or prudent use of limited state resources.
Finally, the people of Minnesota need to know what the law is in Minnesota when it comes to the availability of abortion care. The organizations providing abortion care need to know what the law is. The people who work or are considering working for organizations that provide abortion care need to know what the law is. Pregnant Minnesotans need to know what the law is. But a costly appeal that is unlikely to succeed will serve only to further delay the finality that all Minnesotans need and deserve. Allowing this decision to stand promotes that finality, especially as it is effective in every county of our state.
I have made clear throughout that my personal view has been that the challenged laws were not good public policy. I have nonetheless vigorously defended those laws. My office brought a motion to dismiss, three motions for summary judgment, a motion to exclude the majority of plaintiffs' experts, and an appeal of an adverse jurisdictional decision. As a result, the court twice called my defense of the case "zealous.” As Minnesota’s chief legal officer, however, I am duty-bound to consider not only my role in defending state laws, but the public interest writ large. This is my job.
In my view, and in the view of my co-defendants, not appealing the district court’s decision in Doe v. Minnesota is in the public interest and is the right legal decision. It is also the right choice for Minnesota taxpayers and all Minnesotans who need the finality of knowing that they can make intimate decisions about their own bodies free of undue interference by the government.
Since Doe vs. Minnesota was first filed more than three years ago in June 2019, Attorney General Ellison’s office alone has logged 4,173 hours in defending the constitutionality of the laws that the plaintiffs challenged, for a cost of $544,971 in staff time. In addition, taxpayers incurred $75,907 in expert-witness fees, filing fees, depositions, transcripts, and other costs, for a total cost of $620,878 to the State — hence Minnesota taxpayers — in defending these laws. This total does not include staff hours or any other costs incurred by the other four State defendants.
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