The Daily Beast reported today that Tim Walz outmaneuvered Fox News host as he was grilled on abortion. If you haven’t seen the interview, this is not at all what happened. Walz didn’t outmaneuver Shannon Bream at any point. He never answered the questions she put to him. What Walz obscures in his answers to this question is the fact is that his state allows abortion at any point. This situation is due to the state Supreme Court’s ruling in Doe v. Gomez (1995), which established strong protections for abortion rights under the Minnesota constitution. These protections ensure that abortion remains accessible throughout pregnancy in Minnesota, even if federal protections change.
A Minnesota law—on the books since 1976—required “responsible medical personnel” to use “[a]ll reasonable measures consistent with good medical practice” to “preserve the life and health of the born alive infant.” In 2015, Minnesota enacted the Born-Alive Infants Protection Act, requiring the state department of health to produce a report every year stating the number of babies born alive after an attempted abortion and what happened to them. Over the next eight years, the health department reported twenty-four babies born alive after an attempted abortion. All of the babies died. In eight of those cases it was reported that only comfort care measures were provided. Walz signed legislation in May 2023 that struck the word “preserve” and replaced previous wording with “to care for the infant who is born alive.”
As many of you know, I support a woman’s right to control her reproductive capacity. However, the rhetoric coming from Democrats about laws regulating abortion in various states makes those states appear to be extreme outliers in the West. I checked out the abortion rules in what are in the most progressive states in Europe—the Scandinavian states—and found that there are significant restrictions there. One would expect that many Americans, if presented with the facts not knowing from what state they were obtained, would identify them as rightwing countries.
In Sweden, abortion is permitted on request up to the 18th week of pregnancy. After the 18th week, abortions can only be carried out if the woman’s life or health is in danger, or if there are serious fetal abnormalities, and requires approval from the National Board of Health and Welfare. Sweden has the most liberal policy of the four states I looked at. In Norway, abortion is available on request until the end of the 12th week of pregnancy. After twelve weeks, a woman must apply to a medical board to have an abortion, which may be granted if continuing the pregnancy would have severe consequences for her health or life, or if there are serious fetal anomalies.
Denmark is similar to Norway; abortion is legal there up to the 12th week of pregnancy on request. After that, abortion is only permitted if the woman’s health is at risk, there are fetal abnormalities, or other special circumstances. Approval from a panel of doctors is required for later-term abortions. In Finland, abortion is legal on request up to twelve weeks, though it often requires approval from two doctors. After twelve weeks, abortion is permitted only in cases of severe health risks or fetal abnormalities and requires a permit from the National Authority for Medico-Legal Affairs.
Dobbs v. Jackson Women’s Health Organization (2022) upheld a Mississippi law banning most abortions after 15 weeks of pregnancy and, more significantly, overturned the constitutional right to abortion established under Roe v. Wade and reaffirmed in Planned Parenthood v. Casey. Had it just upheld the Mississippi law, conservative states would have moved in the direction of Scandinavia. Overturning the constitutional right to abortion allowed states to effective ban abortion from conception.
Under Roe v. Wade (1973), the Supreme Court had established a constitutional right to abortion by grounding the decision in the right to privacy under the Due Process Clause of the 14th Amendment. The Court’s ruling also introduced a framework to balance a woman’s right to privacy with the state’s interest in protecting both women’s health and prenatal life. This framework divided pregnancy into three trimesters, each allowing for different levels of state regulation.
During the first trimester, the decision to terminate a pregnancy was left entirely to the woman and her physician, with no government interference allowed. In the second trimester, the state could regulate abortion procedures but only to protect the health of the woman, not to restrict access to abortion itself. This meant that an abortion could be performed as late as the 26th week. In the third trimester, once the fetus reached the point of “viability,” i.e., the ability to survive outside the womb (around 24-28 weeks), the state could prohibit abortions, except when necessary to protect the life or health of the woman.
This trimester framework was later modified by subsequent rulings. Planned Parenthood v. Casey (1992) upheld the core holding of Roe but replaced the trimester system with the “undue burden” standard, allowing states to regulate abortions so long as they did not place a substantial obstacle in the path of a woman seeking an abortion before viability. The viability threshold continued to be a central concept, but states gained more latitude to impose regulations earlier in pregnancy. This opened the door to Dobbs.
Understand that my position on reproductive freedom does not move from the standpoint of the fetus, but of the mother, and that puts me in a minority. I recognize that I have radical position on the matter. Since Trump has promised that there will be no national ban and supports the exceptions of rape, incest, and life of the mother, is it possible for a federal law to be negotiated that allows abortion during the first twelve weeks, then afterwards if certain conditions are met?
To be sure, some US states ban abortion from conception. However, other states allow it to occur at any point during the pregnancy. The debate in America moves from those extremes. Could a compromise be found by adopting the position of the most progressive states in Europe? That would permit abortions while being more restrictive than the Roe standard but would not ban abortion from conception. Would resistance to such a law be more pronounced among conservatives—or would progressives decry it as too extreme?
freedom and reason 