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Monday, December 05, 2022

What text might serve a Minnesota Constitutional Amendment adding reproductive freedom as an express Constitutional right?

 Possible Minnesota Constitutional language - Article 1, new Section 18:

 

Section 18. Right to private personal body autonomy.

In support of the free and independent and inalienable rights of all people in Minnesota such as enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy, the state shall not deny or interfere with an individual’s reproductive freedom in their most intimate decisions, which includes their fundamental right to choose to have an abortion and their fundamental right to choose or refuse contraceptives; this prohibition being intended to further the constitutional right to privacy and the constitutional right to not be denied equal protection. Nothing herein narrows or limits the right to privacy or equal protection. Contraception shall be available in every licensed pharmacy, over the counter and not requiring a physician's presciption, and no pharmacy employee may deny or curtail access, especially for medications where timely use is of the essence. Assertion of unborn being "human persons" whose lives may not be terminated fails as a matter of law to raise a valid claim of a compelling state interest against unimpeded widespread safe medical abortion availability. The State may have an interest in reasonable non-burdensome collection of anonymized statistical data so long as specific detailed patient privacy of medical-professional and pharmacy consultation and services remains recognized as essential. No civil or criminal penalty may attach to error or claimed inadequacy of any such mandated reporting. All parts of this section shall be self-executing and any subsequent federal preemption of any part shall be of minimal intrusion upon the range of freedoms recognized; such range including the absence of civil or criminal penalty for one assisting another in exercising reproductive freedom. Severability exists, with the entire provision not intended to be voided as a whole if any part is voided.

Opening language would preamble that reproductive freedom is equivalent to other of our most fundamental rights; and privacy is expressly written as a right underpinning reproductive freedom rights. 

Questions of "marriage" are expressly not intermixed, Occam's Razor applying. 

California's wording is the main template for the suggested wording. Putting it all in a single paragraph is intentional. Some provisions intentionally go beyond any of the three other state amendments, especially re pharmaceuticals and pharmacies. The intent is to foreclose ways already proposed elsewhere at tearing away the freedom a bit at a time. Making reproductive freedom a fundamental right akin to those mentioned early in the text indirectly requires a compelling state interest to narrow the reach, with "unborn rights" expressly voided as a compelling state interest. 

Specific language, ". . . unimpeded widespread safe medical abortion availability" is specific enough to suggest minimal to no tampering with the freedom can be justified, with specific "unborn" objections expressly foreclosed, Constitutionally.

Medical professional is used and not physician, deliberately; while that term recognizes back alley unprofessional procedures might happen, distinguished from legit practice. Clearly truly unsafe practice can be criminalized or otherwise constrained. That is an inherent police power of the State.

Things such as parental notice, cooling off periods, forced consultations about "options," and requiring abortion providers to have hospital rights in case of emergency, those are proposals that have been trotted out to impede reproductive freedom; however, with a constitutional right recognized in "unimpeded widespread safe medical abortion availability" such questionable impediments will have a harder time being defended.

Detail recognized in the Michigan amendment is included at the end, where precise wording need not exactly parallel the way Michigan said things.

Language cannot help being elastic, and having express Constitutional provision of reproductive freedom resting in part upon an acknowledged right to privacy will not quell litigation or legislative encroachment opportunists. Filing a complaint requires having the filing fee, which is not an onerous thing. Passing an onerous bill requires a majority of both legislative houses and executive approval or a veto override, so the system has its checks and balances where the weight of Constitutional guidance should be accorded respect in the event an amendment resolution is passed.