Abortion Groups Trying to Overturn the Law, but Pro-life Lawyer Fights Back

Late last year, an anonymous abortionist, the local “unitarian church,” and the transgender group launched a lawsuit to overturn all of Minnesota’s abortion-restrictions

Erick Kaardal

Late last year, an anonymous abortionist, the local “unitarian church,” and a transgender group launched a lawsuit to overturn all of Minnesota’s abortion-restrictions. 

The case, Dr. Jane Doe, et al., v. State of Minnesota, et al., brought by the pro-abortion groups, seeks to overturn Minnesota’s 24-hour waiting period for abortions, parental notification standards, and a provision mandating that fetal remains be buried or cremated. The challenge also seeks to strike the requirement that all abortions be performed by a physician.

But all these laws were passed by legislators, elected by the people. Could the courts really throw them out via judicial fiat? The pro-abortion crowd has gotten away with something similar before, when a case in the 1990s forced Minnesota’s Medicaid program for the poor to also cover abortion. 

In that case, the state government was supposed to defend the state from being forced to cover abortion, but the Democratic attorney general and courts were happy to not require a robust argument on behalf of the state and its taxpayers. The risk is that the same thing is happening today.

Ellison isn’t doing his job

Usually, when the government issued, Democrat Keith Ellison or other state attorney generals mount a defense that the other side has a Lack of a Private Cause of Action. 

What’s a private cause of action? To sue the state, one needs a “private cause of action.” In plain English, that means that in order to sue the government, the legislature needs to have granted the specific ability to sue the government. Otherwise, anyone could sue over a local ordinance or schooling issue. 

Opening the floodgates to sue government might seem great. But, in effect, liberal connected groups would have a sympathetic ear in the courts, while many conservative or small-government suits wouldn’t even see the light of day. 

So usually Ellison’s office mounts the defense that plaintiffs have a Lack of Private Cause of Action. This defense comes before any other arguments are made, and asks the court to dismiss the lawsuit outright.

Yet this time, when it comes to the abortion case, Ellison has refused to mount that defense. That’s stunning, and an incredible abuse of the AG office.

Erick Kaardal and Thomas More asks to intervene

Thankfully, the Thomas More Society, Pro-Life Action Ministries, and the Association for Government Accountability—represented by attorney Erick Kaardal—have asserted the right to ask to intervene in the case in order to make the argument that the abortionists Lack a Private Cause of Action. In other words, they are asking to get involved on behalf of the state precisely because Ellison isn’t doing his job. 

The last hearing was held in state district court in St. Paul, last Friday, January 24, 2020. Kaardal says that if the state district court doesn’t side with him, he will appeal this all the way to the state supreme court.

That bodes well for  Kaardal and the pro-life groups. Federal courts agree with Kaardal’s legal argument on disallowing private parties to sue the government. The Minnesota state supreme court can either side with Kaardal and the federal courts or open a legal can of worms—which could swamp the state courts with all sorts of lawsuits against state and local governments.

Willis Krumholz
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Willis L. Krumholz is a fellow at Defense Priorities. He holds a JD and MBA degree from the University of St. Thomas, and works in the financial services industry. The views expressed are those of the author only. You can follow Willis on Twitter @WillKrumholz.