FACT CHECK: Is Abortion Legal Until Fetal Viability In Minnesota?

In an article published on July 29, the Guardian claimed “abortion is legal until fetal viability” in Minnesota.

Tracking abortion laws across the United States https://t.co/IQLCY22q5e

— Guardian US (@GuardianUS) July 29, 2024

Verdict: False

It does not appear that Minnesota law has limits on abortion based on gestational age. The Protect Reproductive Options (PRO) Act also does not appear to include any language stating a limit on abortion in relation to gestational age. In addition, experts agreed that there does not appear to be any limits on abortion in Minnesota.

Fact Check:

Back in March, now-2024 Democratic nominee Vice President Kamala Harris toured an abortion clinic in Minnesota, becoming the first president or vice president to do so, according to The Associated Press.

In the article, the Guardian claimed “abortion is legal until fetal viability” in Minnesota. The claim appears via an interactive map that tracks abortion laws across the United States. Other outlets, such as CNN and NBC News, also reported that abortion was legal until fetal viability.

The claim is false. According to Section 52 of the Minnesota Statutes 2022, section 145.411, subdivision 5, the definition of abortion has been amended to read as follows: “abortion includes an act, procedure or use of any instrument, medicine or drug which is supplied or prescribed for or administered to an individual with the intention of terminating, and which results in the termination of pregnancy.”

While the law does not appear to specify any limitations on abortion based on the gestational age of the fetus, Section 53 of the Minnesota Statutes 2022, section 145.4131, subdivision 1 has been amended to indicate that a physician or facility performing an abortion must report the number of abortions that occurred in the previous calendar year, reported by month, along with the method used to perform each abortion and the approximate gestational age of the fetus, ranging from less than nine weeks up to 37 weeks to term.

According to the same statute, the physician or facility performing the abortion reports the information to the commissioner of health. The Minnesota Department of Health publishes a de-identified summary of the data each year, according to its website.

Similarly, Section 30 of the Minnesota Statutes 2022, section 144.222, subdivision 1 has been amended to indicate that “a fetal death report must be filed within five days of the death of a fetus for whom 20 or more weeks of gestation have elapsed, except for abortions defined under section 145.411, subdivision 5.” The amendments took place in 2023, the website for the Office of the Revisor of Statutes shows.

In addition, the PRO Act does not appear to include any language stating a limit on abortion based on the gestational age of the fetus. “The Minnesota Constitution establishes the principles of individual liberty, personal privacy, and equality. Such principles ensure the fundamental right to reproductive freedom,” subdivision 4 of the Act reads.

Democratic Minnesota Gov. Tim Walz signed the bill into law in January 2023, The Associated Press reported. An April 2024 article from Verify This states the PRO Act “does not include any specific prohibitions on abortions at any stage of pregnancy.”

While the websites for the Minnesota Department of Health and Democratic Attorney General Keith Ellison reiterate that the Minnesota Constitution guarantees citizens the right to obtain an abortion, citing Doe v. Gomez, they do not appear to outline any restrictions on abortion based on the gestational age of the fetus. (RELATED: Donald Trump Claims Kamala Harris Put In Place A Policy That Excuses Up To $1,000 Worth Of Theft)

Minnesota does not appear to have any “statutory limit on abortions,” according to KFF. The Guttmacher Institute also notes “abortion is not restricted based on gestational duration” in Minnesota. Finally, FindLaw states, “abortion is legal throughout all stages of pregnancy in Minnesota.”

The majority of abortions occurred at less than nine weeks gestation, with 8,055 abortions, according to data from the Minnesota Department of Health. This data shows a total of 12,175 abortions occurred in the state between January and December 2022. Of the 12,175 individuals that obtained abortions, 10,166 were Minnesota residents, according to Table 4 from the same report.

644 abortions occurred between 13-15 weeks, while 225 abortions occurred between 21-24 weeks. Two abortions took place between 25 and 30 weeks. No abortions were reported as having taken place after 31 weeks. The clinically estimated fetal gestational age was not reported for 85 abortions.

Experts said that Minnesota does not have gestational limits for abortion.

A spokesperson for the Guttmacher Institute reiterated that Minnesota does not restrict abortion based on the gestational age of the fetus.

“In Minnesota, abortion is not restricted based on gestational duration,” the spokesperson said, referencing the organization’s website.

Kate Kelly, senior director of the Women’s Initiative at the Center for American Progress, said, “there are no gestational limits” on abortion in Minnesota.

“‘Viability’ refers to a hypothetical time a fetus could ostensibly survive outside of the uterus. The precise moment this applies to cannot be medically determined. In Minnesota, there are no gestational limits. Patients should be able to make these medical decisions free from interference from the government. Some of the most dire health circumstances can come later in pregnancy. Frequently, the woman’s life is at risk or there is a severe fetal anomaly. Abortion is lifesaving healthcare desperately needed in Minnesota and all around the country,” Kelly said.

Dr. Gretchen Ely, a professor and faculty affiliate at the University of Tennessee at Knoxville’s Women, Gender & Sexuality Studies Program, said viability appears to be an option in the law, but the law may be applied differently by individual providers.

“I want to be clear that I am not a legal scholar, my expertise lies in interpreting social and health policy, and, in that context, it appears as though abortion to viability is currently an option in Minnesota as the way the law is currently written. Viability is not specifically defined, but it is generally considered to be when a fetus could live on its own, so around 6 months gestation. It is likely that the law is applied differently by each individual provider- some clinics, for example, would likely have the capacity to do later terminations and some would not,” Ely explained.

Jessica Waters, an assistant professor in the department of Justice, Law and Criminology at American University, said Minnesota has not enacted restrictions that limit when in a pregnancy an abortion can be performed.

“Post-Dobbs, many states have placed bans or restrictions on abortion access, such as limits as to when in the pregnancy an abortion can be performed. Some of those laws are incredibly restrictive, banning abortion after 6 weeks of pregnancy (before most women know they are pregnant). Some states, like Minnesota, have not enacted these types of restrictions and allow doctors to provide pregnant patients with the medical care they need. And it’s important to note that almost 95% of abortions in the US occur during the first 13 weeks of pregnancy,” Waters said.

Thomas Jipping, senior legal fellow at the Heritage Foundation’s Edwin Meese III’s Center for Legal and Judicial Studies, agreed that Minnesota does not have gestational limits on abortion.

“Minnesota has no gestational limitation on abortion,” Jipping said.

“On January 31, 2023, Gov. Walz signed into law the Protect Reproductive Options Act, which states: ‘Every individual who becomes pregnant has a fundamental right to continue the pregnancy and give birth, or obtain an abortion, and to make autonomous decisions about how to exercise this fundamental right.’ This prevents imposition of any gestational limit.”

CNN and NBC News updated their articles to note that there is no gestational limit on abortion in Minnesota after Check Your Fact reached out for comment.

CNN’s article now reads,”Abortion remains legal with no gestational limit” while NBC News’ article states, “Minnesota repealed many abortion restrictions in 2023.”

A CNN spokesperson told Check Your Fact that “We have updated the graphic to align with the Guttmacher Institute assessment. Thank you for bringing this discrepancy to our attention.”

NBC News senior editor Nigel Chiwaya told Check Your Fact that “You are correct, Minnesota repealed several abortion restrictions in 2023.”

“We’ve updated the tracker to reflect this,” Chiwaya said.

Check Your Fact has also contacted the Guardian and Ellison’s office for comment.

Elias Atienza contributed to this report.