Attorneys general are assuming powerful roles in the new state-by-state battle over abortion access following the fall of Roe v. Wade, vaulting the issue to the forefront in upcoming elections of the states’ chief legal officers.
Minnesota Attorney General Keith Ellison and the two top GOP candidates vying to replace him this fall are weighing the office’s legal options post-Roe, from responding to potential abortion-related extradition orders to intervening in civil cases.
But it’s clear the three attorneys would bring starkly different backgrounds — and philosophies — to the job.
“We’ve relied on Roe for 50 years. Now, all of a sudden, it’s not there. So what is going to happen? We’re exploring that,” said Democratic Attorney General Keith Ellison. “This is having implications that are playing out day by day.”
Minnesota, where a 1995 state Supreme Court ruling protects abortions, is now an anticipated destination for women seeking the procedure. The latest shake-up for the state came last week as a district judge ruled that many abortion restrictions in state law were unconstitutional, further expanding access and bolstering the state’s status as an island in the region.
The case immediately put a spotlight on the candidates’ diverging approaches on the issue. Ellison, whose office defended the state’s abortion laws in court, is still considering whether he will appeal and attempt to undo the ruling.
“I believe in a woman’s right to choose. I also have the duty to defend Minnesota statutes,” he said shortly after the ruling was released. “Both of those are my jobs at the same time.”
But Republican candidates Jim Schultz and Doug Wardlow say Ellison and his office are bound by duty to appeal the case, which must happen within 60 days of the ruling.
“They at least have to do their basic constitutional duty to appeal to ensure that Minnesota law is upheld,” said Schultz, an attorney from Minnetonka who specializes in business and regulatory law. “To the extent the litigation remains ongoing after the appeal, we’ll continue to aggressively prosecute that when I take the job.”
Schultz, the Republican-endorsed candidate, helped set up a crisis pregnancy center in Mankato before getting involved in politics. He also recently served for a year on the board of the nonprofit Human Life Alliance, which creates and disseminates information opposing abortion. Some of those materials are controversial, spreading discredited claims linking abortion and an increased risk of breast cancer and drug abuse.
He’s “fundamentally pro-life,” but Schultz said he wasn’t involved in the day-to-day work of the nonprofit or in creating materials that were distributed. Those views wouldn’t change how he sees the office of attorney general, which he describes as the “apolitical” chief defender of Minnesota law.
“I would be an attorney general who enforces Minnesota law, whatever it is, and an attorney general who defends Minnesota law, whatever it is,” said Schultz, who added that he thinks Ellison “enforces policies that he prefers; he ignores laws that he doesn’t like.”
Meanwhile Wardlow, who will face Schultz in the Aug. 9 primary, said he will look for every opportunity to overturn the state Supreme Court’s ruling in Doe v. Gomez, the 1995 case that protects the right to abortion in Minnesota.
“There is no right to abortion in the state constitution, and Doe v. Gomez was an act of pure judicial power that takes the right to restrict abortion and protect life away from the people and the people’s representatives,” Wardlow said.
He said he hopes the Legislature, all 201 seats of which are up for election this November, will pass bills restricting abortion and a Republican governor will sign them into law. As attorney general, Wardlow said he would defend such laws and in doing so potentially attempt to overturn Doe v. Gomez.
Wardlow, who lost to Ellison in 2018, co-sponsored a handful of bills to restrict abortion during his one term in the state House a decade ago. He is general counsel for MyPillow and has done legal work for the conservative Christian advocacy group Alliance Defending Freedom.
Ellison, meanwhile, said he has stood “100% with Planned Parenthood,” including working in Congress to undo the Hyde Amendment, which restricted federal funding for abortion. As attorney general, he was a part of more than a dozen multi-state lawsuits involving abortion, including joining other states in suing then-President Donald Trump’s administration over a rule blocking federally funded health clinics from referring patients for an abortion.
Days before the U.S. Supreme Court removed abortion protections and allowed states to ban the procedure, Ellison announced that he would fight to protect women seeking an abortion. If another state requested someone face extradition for getting an abortion in Minnesota, he would reject such a request and potentially take on the other state in court.
Extradition is ultimately a gubernatorial decision, but the attorney general must be consulted, Ellison said. Minnesotans benefit from the attorney general and governor being elected independently from one another, Ellison said, adding that if GOP gubernatorial candidate Scott Jensen were elected, he would not be able to stop Ellison from going to another state and filing a motion to dismiss prosecution.
“I would hope that the governor would honor Doe versus Gomez. If he doesn’t, I will,” Ellison said, noting that he would sue the governor if necessary.
“We have every reason to believe that people’s right to seek a safe, legal abortion is going to be impaired, even if they do it in a state where it’s legal,” Ellison said. “So we’re prepared to defend people’s right to travel and to benefit from the laws of the state of Minnesota. And not just women, but also providers, people who assist them.”
Wardlow said if DFL Gov. Tim Walz remains in office and wants to fight an extradition request, he would review the situation and stand against the governor if needed. Schultz said extradition is the job of the governor, and it’s not the attorney general’s job to “enforce Texas law or South Dakota law” on abortion.
In Minnesota, extradition-related battles will likely be a primary source of contention, along with civil cases, said James Tierney, a former Maine attorney general and Harvard Law School lecturer. Private companies that help employees get abortions in Minnesota could face lawsuits, he noted.
“It would not surprise me at all if the attorney general of Minnesota would intervene on the same side as [the business] in the courtroom,” Tierney said of Ellison. “And say, ‘We agree with them, and we’re going to file briefs to defend them. We’re going to fight for them.”
Minnesota reported 10,136 abortions in 2021, a 2% increase from 2019. Ellison’s campaign said he supports Roe’s framework establishing fetal viability — generally considered between 23 and 24 weeks of pregnancy — as a threshold for state restrictions, with “critical exceptions” for the health of the baby and “the health and well-being of the pregnant person.”
Schultz supports a ban after 20 weeks of pregnancy, but he said he wouldn’t use the office to advocate for it. Wardlow’s campaign said he supports a ban on all abortions except to save the life of the mother.
Clarification: A previous version of this article said state law restricts abortions after fetal viability, but the law was struck down in a court case and many believe is no longer in effect.