Intervention in the case would complicate things, but likely would allow the question of the litigation to linger and ultimately wend its way into a likely Minnesota Supreme Court decision of some kind. But is that good?
With DFL control of both houses of the legislature and the executive branch, why bother? For now the Gomez case stands as governing judicial law.
The legislature in reforming things should repeal the objectionable provisions, and then reform statutory law to expressly and unambiguoulsy conform with Gomez, as however might be deemed appropriate by majority rule. And then the legislature should put Constitutional inclusion of abortion and privacy rights, expressly worded, to a public vote on a referendum to amend.
Moot the intervention question. Or for now postpone it and set the table for mooting. Avoid unnecessary court churning. The courts could simply postpone the question as a scheduling discretionary power, until the legislature has had a reasonably sufficient time to act, next session, and in the absence of legislative action over such a fair timeframe, the courts always could revisit the case.
That which churns less is best.
Deference to the new post-election legislature is the best way to balance the relative roles of the three branches of Minnesota government; such deference to the legislature not needing to be open-ended, but with sufficient judgment going into selecting a reasonable period of deferential time, so as to not suggest the legislature need be under unsuitable pressure to act or not.
Keep it neat. Keep it clean. Avoid what likely would be awkward and ultimately unneeded litigation.
In the interim, Gomez stands.
Judicial economy is best served, that way. Reopening a closed district court decision via tardy intervention without allowing legislative time to set policy in line with election results might be viewed as an improper judicial intrusion into due process balancing of three-branch function.
Look at how awfully the federal law was horsed up by Alito and confederates, and avoid any such mess at the State level, where the Alito opinion after all has said legislatures should speak and form State law.
The intervention motion seeks moving the judiciary to act prematurely. Presuming the legislature has a present majority to clarify and reform law regarding abortion, stay the judiciary by its own hand, and allow Minnesota's elected next session legislature to provide for State law given what the federal judiciary has most recently done on the question.
Hopefully the Attorney General on the pending intervention question shall argue for simple judicial forbearance until the newly elected legislature has had a sufficiently reasonable time to act in accordance with our most recent federal judicial decision-making, this being the first legislature elected subsequent to Alito and henchpersons entering their decision that abortion is an area in which state legislatures should act.
JUST HOLD OFF. GIVE EACH BRANCH DUE TIME. IT CAN BE EXPECTED LEGISLATION ENSHRINING THE RIGHTS TO PRIVACY AND BODY AUTONOMY, IF ENACTED, WILL BE CHALLENGED BY SOME FRINGE GROUP. THEREBY LEADING TO SUPREME COURT DECISION MAKING IN THE ABSENCE OF A DEFINITIVE CONSTITUTIONAL AMENDMENT. IT CAN BE EXPECTED THAT A CONSTITUTIONAL AMENDMENT, IF PROPOSED, WOULD BE A DECISIVE STEP WHERE ALL THREE BRANCHES OF MINNESOTA'S GOVERNMENT COULD DEFER DECISION TO POPULAR WILL VIA POPULAR VOTING.
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The best argument for such reasonable deference is the most fundamental.
Look to the opening of the Minnesota Constitution:
Preamble
We, the people of the state of Minnesota, grateful to God for our civil and religious liberty, and desiring to perpetuate its blessings and secure the same to ourselves and our posterity, do ordain and establish this Constitution
ARTICLE I
BILL OF RIGHTS
Section 1. Object of government.
Government is instituted for the security, benefit and protection of the people, in whom all political power is inherent, together with the right to alter, modify or reform government whenever required by the public good.
[...]
If that does not say let the ultimate sovereign, the people, decide the abortion question by voting on new, clear Constitutional wording inserting further delineation of rights, as the best and most prudent course of action in present circumstances; then what does it say?
Moreover, it is noteworthy how the Preamble wording puts civil liberties ahead of religious liberties, where body autonomy of pregnant females, whatever their ages, is a preeminent - or should be - a preeminent civil right; apart from anyone's religious thoughts and/or biases.
Some might not like that. But each has a vote. Our federal Supreme Court has left Minnesota no more sensible course of action. No court could credibly rule a Constitutional Amendment, duly enacted, "unconstitutional." Such a subornation of popular will would be tyranny. And it squares with Mr. Alito's stated opinion, and presumably would sit okay with Mr. Leonard Leo for the foreseeable future.
___________UPDATE___________
For those unaware of intervention effort detail; see, e.g., Alpha News, here, here, here, and here. Also, here. (Be aware that Alpha News greatly slants its reporting.)
Intervention is sought for the MOMS group of affiliated persons to be added to the case as a Defendant, and to be allowed to supplement the existing factual record built over time prior to the case being earlier decided, i.e., from a closure months before the intervention effort.
For the two court papers most informative, see, the Judge's already issued July, 2022, Order and Memorandum, and the months-later post-election Nov. 14, 2022, Memorandum in Support of Motion to Intervene of the MOMS group (filed with an accompanying Motion, equally dated) .Judicial economy and Occam's razor cut the same way - postpone the MOMS. As noted previously, the MOMS effort could prove to be sound and fury signifying nothing, should the new legislature proceed as anticipated and promised:
Minnesota Democrats say they rode a wave of anger over the U.S. Supreme Court's reversal of Roe v. Wade into complete control of state government, giving them a clear directive from voters to enshrine abortion protections into state law.
[...] "This is a pro-choice state. Period. Full stop," said Minnesota Lt. Gov. Peggy Flanagan, who won re-election last week alongside DFL Gov. Tim Walz. "With a historic pro-choice trifecta in the Legislature, we aren't just on defense, we can proactively invest in policies and programs that improve people's care and improve people's lives."
With that mood prevailing it would be foolish not to provide sufficient time for specific legislative action to happen aimed to "proactively invest in policies and programs that improve people's care and improve people's lives," which most likely moots the MOMS efforts. They already delayed filing until after the election. Allowing more intervening reasonable time for legislative clarity will not prejudice them. They do not assert imminent actual irreversible harm. Rather, reasonable forbearance will shape their questioning for a new day and a new way, as imminent lawmaking events beginning next January quickly evolve to stem uncertainties.
Urge the legislature to move first, with purpose. Given the threat of a costly but ultimately unnecessary reopening of the decided trial court case, readers are strongly urged to contact their legislators calling this intervention-and-reopening effort to their attention and urging them to take heed and act expeditiously.
The Attorney General should accordingly argue to the district judge for reasonable deferential time for the legislature to define itself.
________FURTHER UPDATE_______
Having been asked whether I favor or disfavor reopening the case for a stronger adversarial presentation against Plaintiffs beyond the present record, there are aspects to the case that are strained, as would be the hypothetical situation were Catholic St. Thomas grad James Schultz to have been elected AG, and then the new DFL led legislature and executive were to generate and sign into law a fine, stout recognition of freedom and liberty of women to have autonomy and jurisdiction over their bodies to where by statute a protected right to terminate an unwanted pregnancy became law - while repealing any/all antiabortion legislation expressly rather than implicitly; under that hypothetical, would young, inexperienced Schultz vigorously defend such law as a duty of the office if the State were named in an action, that action judge shopped to a Catholic judge or other anti-abortionist with a robe and hammer, or would Schultz produce a lackluster defense of the statute to where it could be stricken for lack of a stout defense?
No harm to judicial fairness would result if the present judge were to permit intervention of the St. Thomas MOMS as a Defendant and to permit new "allegedly expert" stuff to be trotted out and pasted in, on condition that intervenor agree to the case thereafter being taken under advisement for at least a full single legislative session, given a substantial likelihood the issues might be mooted during such session.
If not legislatively mooted, then to proceed as the judicial discretion and predilection dictate, extended advisement being an option.
If Minnesota law has a requirement of an order and opinion having to be issued on some non-infinite time frame, that could be dealt with, again as a waiver precondition term affecting decision about permissive intervention.
Building a supplemented record now, with movant for intervention having already prepared declarations, has some sense to it - now, but only with a forbearance understanding in place as a precondition for permissive intervention.
Then, new legislation or
not, mooting of an expanded case or not, progression through the
judiciary once "under advisement" is transacted into issuance of a final
ruling of Constitutional law upon the buttressed record, appeal, etc. -- all that could follow in due course, depending on intervening actualities outside of the judicial branch of Minnesota's three branches.
In effect, go ahead with the record being augmented, sit on it, no harm to that; see what the other two branches of government do for a reasonable time; and then revisit it or dismiss it as mooted by intervening change of statutory law - as circumstances show proper.
If new law is formed, the St. Thomas Catholic faction now moving to change the existing case (which curiously was allowed to go to decision without a St. Thomas peep until it became clear that the election gave the other two branches to the DFL, and only then arising from the weeds to strike; i.e., only then pushing at the judicial branch from the clearly less popular political position - that highly questionable set of procedural macinations and decision making by those now pushing intervention - always remember that those same malcontents will be able and entitled to put together a Constitutional challenge to the new legislation, any new legislation, should they wish to, without a tangled district court situation hanging over to mess the clean question of Gomez being the Minnesota Constitutional precedent yet tersely written, and how new law might square with Gomez.
Gomez is not the most extensively reasoned and bolstered decision one might hope to weigh and consider as controlling judicial law, but it is the existing precedent.
BOTTOM LINE: The judiciary should show deference to the other two branches because an election, the sovereign people speaking most recently, suggests strong abortion availability rights is soundly majority supported in the voting populace.
Beyond that, it is greatly troublesome to me that the Catholic dance is to affirmatively and vigorously meddle in the lives of others, while nobody is telling any one of them to have or not have an abortion however they may choose.
They are the unjustified intermeddlers in the peace, tranquility and permissive rights of others for, to me, wholly bogus and indefensible reasons of bias and mythology and Papal dogma and command. To me, not to any degree infallible cause to meddle in lives of others.
Of relevance, from back when the Alito stuff hit the fan, this and this.