At a regular checkup halfway into her pregnancy in late 2021, Erin Maye Quade got a wakeup call.
“They thought that my placenta might not be delivering all the nutrients to my baby,” said Maye Quade, a DFL state senator from Apple Valley.
Two factors already made Maye Qaude’s pregnancy higher risk: her ethnicity as a Black woman and her age at the time, 36, old enough for it to be considered a geriatric pregnancy (Maye Quade is now 37). Maye Quade started running through the scary ‘what if’ scenarios.
“What if she stops growing?” she asked herself of her unborn child. “What if I stop delivering nutrients to her and she’s in distress? What if she dies in utero, or is dying?”
If Maye Quade had reached a point where she felt a need to terminate the pregnancy, her doctor told her that she might have needed to travel to a state like Colorado for the procedure, depending on how far along her pregnancy was.
“They said, ‘Well, if she’s not going to survive in the next two weeks, we can help you. If it’s after that, you have to go somewhere else,’” Maye Quade said.
Ultimately, Maye Quade ended up giving birth to a healthy girl last April. But until recently, a Minnesota statute prevented medical providers from performing abortions on “potentially viable” fetuses unless the mother’s life was in danger. No medical consensus exists on the definition of a viable fetus, but the term generally means the point where a fetus has a good chance of survival outside of the womb. That can range between 20 and 24 weeks, depending on the hospital or treatment center.
The experience prompted her to act. During this past legislative session, Maye Quade sponsored a bill to drop the fetal viability law, as well as several other state statutes that restricted abortion access. Her bill eventually became a part of a health and human services omnibus bill that the Legislature passed and Governor Tim Walz signed into law last month.
“When we attach criminal behavior to medical care provided to pregnant people, we chill the environment under which people can access that care,” said Maye Quade, who was already working on expanding abortion access before her health scare.
Now, Minnesota is one of a small number of jurisdictions—seven states and the District of Columbia—that don’t restrict abortion in the second or third trimester of pregnancy. The result is significant, according to Mitchell Hamline School of Law professor Laura Hermer.
“Even in states that permit abortion, most restrict abortions at and after viability,” Hermer said.
It also opens the door for, but does not guarantee, abortions performed later in pregnancy becoming more available in Minnesota.
Rare but needed procedure, advocates say
The vast majority of abortions performed in the country happen during the early stages of pregnancy. More than nine out of every 10 abortions occur during the first trimester, defined as the first 13 weeks of gestation. Just under 6 percent happen between the 13th and 20th week of pregnancy, and less than 1 percent occur after 20 weeks, according to the Centers for Disease Control and Prevention.
In other words, abortions during the later stages of pregnancy are rare. But many advocates say abortions later in pregnancy still sometimes need to happen, especially during medically complex pregnancies. And the procedure is by no means widely available. One former later pregnancy abortion provider could think of only two clinics specializing in the procedure: one in Colorado and another in Washington, D.C. At least one more clinic, located in Maryland, opened last fall.*
Scenarios that may lead to such a procedure usually involve fetal anomalies or health risks to the mother like preeclampsia, according to abortion providers and advocates who spoke to Sahan Journal for this story. These scenarios are more prevalent in Black women, Maye Quade emphasized.
“People aren’t doing this for any other reason than because something horrible happened,” she said.
Minnesota’s fetal viability law dated back to the landmark 1973 Roe v. Wade Supreme Court decision that made abortion a constitutional right. That decision effectively legalized abortion across the country, but still permitted states to ban the procedure after fetal viability if the mother’s life wasn’t in danger from the pregnancy. Several states, including Minnesota, quickly took that route.
In 1974, the Minnesota Legislature passed a law barring abortions of a “potentially viable” fetus unless the mother’s life was in danger. The statute defined “potentially viable” fetuses as all pregnancies at 20 weeks or more of gestation.
Two years later, the federal 8th Circuit Court of Appeals struck down Minnesota’s “potentially viable” definition, ruling that 20 weeks was too early for a fetus to be considered viable. This, according to Maye Quade and Hermer, effectively made Minnesota’s fetal viability law unconstitutional and unenforceable.
Still, the fetal viability law remained written in state statute for the next half century, likely preventing Minnesota providers from performing abortions later in pregnancies. Minnesota’s own data show that abortions performed on pregnant patients at 25 weeks or more of gestation accounted for just 10 of the nearly 50,000 abortions performed in the state between 2017 and 2021.
Susan Robinson is an obstetrician and gynecologist who performed third trimester abortions in Kansas and New Mexico from the mid-2000s through the mid-2010s. In pregnancies, the third trimester begins at 26 weeks. Sahan Journal spoke with Robinson before and after the Minnesota Legislature dropped the viability statute to get a sense of how it would affect providers. When she first spoke last February, Robinson said she would never perform a third trimester abortion in a state like Minnesota as long as the viability statute remained on the books, even if a court had found it unconstitutional decades ago. “I would not feel comfortable opening a third trimester practice in Minnesota because of the lack of clarity in the law,” Robinson, speaking theoretically, said at the time.
But if “all questions of gestational age were unequivocally removed from the law,” Robinson said she would consider herself legally protected to perform third trimester abortions here.
“If I could find a hospital that would provide backup without regard to gestational age, then I would consider setting up a clinic in Minnesota,” she said. “Being surrounded by anti-abortion states, Minnesota would be a good location for a clinic.”
Later pregnancy abortion providers are few and aging
The number of doctors who currently perform third trimester abortions in the country is likely small enough to count on one hand. Robinson, 77, could think of just five doctors, including herself. She and another of those five doctors are retired. Likewise, Robinson could only point to two clinics in the country that perform third trimester abortions: the DuPont Clinic in Washington D.C. and Boulder Abortion Clinic in Boulder, Colorado. Additionally, Partners in Abortion Care in College Park, Maryland, opened last fall and offers third trimester abortions.*
At least two others provided third trimester abortions until recently. Southwestern Women’s Options in Albuquerque, New Mexico, where Robinson worked in the 2010s, stopped performing them a few years ago when it got busier with earlier term abortions as a result of . new abortion restrictions and clinic closures in nearby Texas, Robinson said. Clinics for Abortion and Reproductive Excellence in Bethesda, Maryland also stopped providing third trimester abortions earlier this year after its founder and lead doctor, Leroy Carhart, died in April at 81.
That leaves Boulder Abortion Clinic, where founder Warren Hern is 84, and the DuPont Clinic, where founder Matthew Reeves is in his 50s.
The reasons for the tiny number of third trimester abortion providers in the country are many.
First, they require specialized training. Surgical abortions earlier in pregnancy can be performed in one day using the relatively simple dilation and extraction method. A third-trimester abortion, on the other hand, is a more complex procedure usually requiring three days to complete.
States and territories with no gestational limit on abortion
- New Jersey
- New Mexico
- District of Columbia
Second, Robinson said performing abortions later in pregnancy can be mentally taxing, and medical professionals can find the procedure distasteful.
“It’s emotionally very intense,” she said. “You have to constantly remember that the patient is there because something went horribly wrong with a very desired pregnancy. Or nothing’s wrong with a very undesired pregnancy.”
Robinson continued: “You have to remember that for one person, it’s a fetus, and for another, it’s a baby with a name already. I think a lot of people don’t want to be involved with that.”
Finally, performing abortions later in pregnancy also comes with personal risk, given the controversial nature of the procedure. The most infamous example is the 2009 murder of Dr. George Tiller, a Witichita, Kansas doctor who was killed by an extremist while attending church on a Sunday morning (Robinson worked for Tiller in his Wichita clinic for five years in the 2000s).
Third trimester abortions are sometimes rare even at the clinics that offer them, though they’re higher than the national average. In Colorado during 2020, patients pregnant at 20 weeks or more accounted for less than 3 percent of all state abortions, compared to just under 1 percent nationwide, according to the CDC. Robinson kept data on the number of third trimester abortions at Southwestern Women’s Options in Albuquerque between 2010 and 2013. Throughout that three-year span, doctors at the clinic performed less than four third trimester abortions a week. That’s compared to the 40 to 50 total abortions the clinic would perform on a typical week, Robinson said.
Because most countries bar or limit abortion later in pregnancy, these patients came from all over the world, Robinson said, including countries like New Zealand, Australia, Saudi Arabia, Vietnam, and Japan.
In Minnesota, abortion rights advocates and experts said they are currently unaware of any clinics or providers in Minnesota who want to perform abortions later in pregnancy in the state.
“I have not heard any providers express an interest,” Hermer said.
But all were in agreement that the post-Roe v. Wade abortion landscape will lead to more pregnant patients seeking abortions later in their pregnancy. New restrictions and complete bans of the procedure in conservative-leaning states will require patients seeking abortions to travel and delay their abortions, they say. Meanwhile, their pregnancies will continue to progress.
Thirteen states now ban abortion, except in limited circumstances, according to the Guttmacher Institute, which advocates for abortion rights. Two of those states, North Dakota and South Dakota, border Minnesota, and the other two, Iowa and Wisconsin, are more restrictive than Minnesota in abortion access.
Warren Hern, the Boulder doctor who performs abortions later in pregnancy, told Sahan Journal in an interview that he’s performed more third trimester abortions in recent years as states adopted restrictions on the procedure, even before the overturn of Roe v. Wade.
Today, Hern estimates that half of the abortions at his clinic are performed later in pregnancy compared with less than a quarter of his patients 20 years ago.
He expects demand for later abortions to increase.
“I think there are proportionately more later abortions being performed now because of the repression and elimination of early first trimester abortions all over the country,” Hern said.
Maye Quade said that the biggest takeaway of dropping the viability statute is that state law no longer criminalizes medical providers. Even if no Minnesota providers decide to offer later pregnancy abortions, the change in law means the conversation she had with her doctor during the uncertain moment in her pregnancy would be different today.
“The answer that my doctor would give me would not be related to the law, it would be related to my scenario,” she said. “Every pregnant person in Minnesota can know that the answer that they’re being given from their provider is based on what care is appropriate for them, what care can be provided, and nothing else.”
Why are pregnant patients getting abortions later in pregnancy?
When Dr. Susan Robinson performed third trimester abortions in New Mexico at Southwestern Women’s Options, she compiled data explaining the frequency and reason for the procedure.
Robinson came up with the following statistics of third trimester abortions performed at that clinic between 2010 and 2013 (the patients typically list more than one of these explanations, she emphasized):
- 55 percent didn’t find out they were pregnant until later in their pregnancy, usually well into the second trimester. Often these are people with conditions like polycystic ovary syndrome, which causes irregular menstruation, and overweight people.
- 28 percent had no symptoms of pregnancy at all until later, meaning they continued to experience cyclical or irregular menstruation.
- 20 percent planned and desired their pregnancy but were diagnosed with a fetal anomaly late into their pregnancy. A common example of this would be a brain development disorder of the fetus, Robinson said.
- 15 percent experienced financial barriers to having a child.
- 11 percent lived a chaotic lifestyle, which Robinson said could include drug addiction, homelessness, being partners of drug addicts, living in and out of jail, being the partner of someone living in and out of jail, and more.
- 11 percent were either using birth control and unaware of their pregnancy until later or wrongly told by a doctor that they were incapable of getting pregnant.
- 9 percent were pregnant as the result of rape.
- 8 percent were in denial about their pregnancy until later.
- 7 percent knew they were pregnant and couldn’t deal with it. These patients were usually younger girls, Robinson said.
- 7 percent were from doctor error or were lied to.
- 6 percent experienced a recent drastic change in their lives, often involving a partner leaving them or a partner becoming abusive after pregnancy.
- 5 percent were in relationships with abusive partners or someone who kept them captive.
- 4 percent had maternal physical issues that arose during pregnancy.
- 2 percent were teen athletes who hadn’t started menstruating yet.
- 1 percent had a very low IQ.
*Clarification: The story has been updated to reflect that a clinic specializing in later pregnancy abortion opened in Maryland last fall.