Attorney General Ellison, co-defendants will not appeal Doe v. Minnesota

Attorney General must consider broad public interest in deciding whether to appeal; decision comes after three years of vigorous defense of laws in court at cost of more than $600K

July 28, 2022 (SAINT PAUL) — Minnesota Attorney General Keith Ellison announced today that along with Governor Tim Walz, the Department of Health, the Board of Medical Practice, and the Board of Nursing, he will not pursue an appeal of the July 11, 2022 Ramsey County District Court ruling in Doe v. Minnesota. The Attorney General was successful in obtaining dismissal of many of the plaintiffs’ claims, including their vagueness challenge and their religious freedom claims, and was successful in defending the statutes that require anonymous reporting of basic facts regarding abortion care.  However, the court found that a variety of state laws that restricted access to abortion were unconstitutional and immediately blocked them from being enforced statewide.   

Attorney General Ellison issued the following statement:  

After three years of litigation in which my office and I thoroughly, vigorously, and faithfully defended the constitutionality of several state laws that regulate abortion, and after long and careful consideration of the district court’s ruling and consultation with each of my co-defendants, I have decided not to appeal in the case of Doe vs. Minnesota.   

As Minnesota’s attorney general, I must consider the broad public interest in deciding whether to appeal any court outcome, including rulings related to the constitutionality of state laws. The public interest includes a number of factors, including the likelihood of success of an appeal, the proper and careful use of state resources, the impact on other areas of state law, and the public’s need for finality.  

In my estimation, we are unlikely to obtain a different result through an appeal. At most, an appeal would remand the case to the district court for a bench trial in front of the same judge, where the State would once again be unlikely to prevail for the reasons the court outlined in its July 11 ruling. In addition, one of the State's experts concluded that the challenged laws did not materially impact abortion rates in Minnesota, suggesting they were not achieving the policy goals set by the Legislature. Furthermore, the district court’s ruling has no impact on the constitutionality of any other types of state laws that my office might be called upon to defend. For these reasons — and in the context where my office alone has already spent more than 4,000 hours and $600,000 in defending these laws — appealing the case is not a proper or prudent use of limited state resources.  

Finally, the people of Minnesota need to know what the law is in Minnesota when it comes to the availability of abortion care. The organizations providing abortion care need to know what the law is. The people who work or are considering working for organizations that provide abortion care need to know what the law is. Pregnant Minnesotans need to know what the law is. But a costly appeal that is unlikely to succeed will serve only to further delay the finality that all Minnesotans need and deserve.  Allowing this decision to stand promotes that finality, especially as it is effective in every county of our state. 

I have made clear throughout that my personal view has been that the challenged laws were not good public policy. I have nonetheless vigorously defended those laws. My office brought a motion to dismiss, three motions for summary judgment, a motion to exclude the majority of plaintiffs' experts, and an appeal of an adverse jurisdictional decision. As a result, the court twice called my defense of the case "zealous.” As Minnesota’s chief legal officer, however, I am duty-bound to consider not only my role in defending state laws, but the public interest writ large. This is my job.  

In my view, and in the view of my co-defendants, not appealing the district court’s decision in Doe v. Minnesota is in the public interest and is the right legal decision. It is also the right choice for Minnesota taxpayers and all Minnesotans who need the finality of knowing that they can make intimate decisions about their own bodies free of undue interference by the government. 

Since Doe vs. Minnesota was first filed more than three years ago in June2019, Attorney General Ellison’s office alone has logged 4,173 hours in defending the constitutionality of the laws that the plaintiffs challenged, for a cost of $544,971 in staff time. In addition, taxpayers incurred $75,907 in expert-witness fees, filing fees, depositions, transcripts, and other costs, for a total cost of $620,878 to the State — hence Minnesota taxpayers — in defending these laws. This total does not include staff hours or any other costs incurred by the other four State defendants. 

Prior example of decision not to appeal: Telescope Media case 

The Office of the Attorney General handles hundreds of legal matters at all levels of court every year, including constitutional challenges to state laws. It is a core part of the Attorney General's job as Minnesota's chief legal officer to make multi-factored determinations about whether a court decision should be appealed, whether in total or in part. In every instance, the Attorney General must make that determination on a case-by-case basis, in the context of the unique facts, laws, venue, and jurisprudence in each matter.  

In December 2016, a St. Cloud-based videography company called Telescope Media Group sued the Attorney General and the Commissioner of the Minnesota Department of Human Rights in federal court because it wished to enter the wedding-video business but did not wish to make videos of the weddings of same-sex couples and wanted the prospective right to refuse that business. In its lawsuit, Telescope claimed that the Minnesota Human Rights Act, which bans discrimination in public accommodation on the basis of sexual orientation and a variety of protected categories, infringed on what they claimed was a variety of rights not to produce wedding videos of same-sex couples.  

In September 2017, the federal district court dismissed all of Telescope’s claims. In August 2019, the U.S. Court of Appeals for the 8th Circuit upheld the lower court’s dismissal of most of Telescope’s claims, but it reversed the lower court’s dismissal of Telescope’s free-speech and free-exercise claims and remanded those claims to the federal district court. 

After careful consideration, Attorney General Ellison and Human Rights Commissioner Rebecca Lucero chose not to appeal to the U.S. Supreme Court. Instead, they accepted the 8th Circuit ruling sending Telescope’s lawsuit back to district court for discovery and potential trial on its remaining claims. In December 2020, Telescope moved to dismiss their own lawsuit and the case did not proceed.