Government

Iowa's fetal heartbeat law faces long, uncertain legal future

Justice David Wiggins, left, listens as Chief Justice Mark S. Cady asks questions of the lawyers during oral arguments on the Planned Parenthood v. Reynolds case at the Iowa Supreme Court Wednesday, Feb. 14, 2018, in Des Moines, Iowa.
Justice David Wiggins, left, listens as Chief Justice Mark S. Cady asks questions of the lawyers during oral arguments on the Planned Parenthood v. Reynolds case at the Iowa Supreme Court Wednesday, Feb. 14, 2018, in Des Moines, Iowa.

DES MOINES — Iowa Republicans and social conservatives hope they have planted the seed that will bear the fruit of a U.S. Supreme Court reversal on abortion laws.

The judicial process that could play out over the fetal heartbeat law approved this week by the GOP-led Iowa Legislature and Republican Gov. Kim Reynolds could take two to three years, cost the state hundreds of thousands of dollars, and ultimately depend on shifting tides in ideological judicial makeup and public opinion, legal experts said.

The end game for Republicans and social conservatives is an opportunity for the U.S. Supreme Court to overturn Roe v. Wade, the landmark 1973 decision that guaranteed a woman’s right to abort a pregnancy.

“I believe this bill will be a vehicle that will ultimately provide change and provide the opportunity to overturn Roe v. Wade,” Rick Bertrand, a Republican state senator from Sioux City, said this week. “There’s nothing hidden about the agenda. Today the pro-life movement won a battle, but the war rages on.”

What promises to be a protracted legal battle started in earnest this week when Reynolds and Republicans in the Iowa Legislature approved legislation that would ban abortions once a fetus’ heartbeat can be detected. That typically happens around six weeks, often before the woman knows she is pregnant, according to medical sources.

The bill doesn’t go into effect until July 1.

On Friday, the same day Reynolds signed the bill into law, the women’s reproductive health care provider Planned Parenthood of the Heartland and the Iowa chapter of the American Civil Liberties Union announced they will file a court challenge to the new law.

Legal experts said any petitioning organization likely will ask for an immediate injunction, which if granted would stop the law from going into effect until the courts can consider and rule whether the law is constitutional.

The injunction almost certainly would be granted, legal experts said.

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“I’m assuming the injunction will be granted because there’s a clear reason to question the constitutionality of the bill,” said Renee Cramer, a professor of law, politics and society at Drake University. “Then it would work its way through the court system.”

Attorneys who file for the injunction will be faced with a decision — whether to challenge the law in state or federal courts. Either path ultimately could lead to the U.S. Supreme Court.

‘odds are small’

The Iowa Supreme Court recently has been involved with other state abortion laws. It rejected a law that would have blocked doctors from using remote video technology for abortions, and is expected in the coming weeks to deliver a ruling on a new law that would require a three-day waiting period before a woman has an abortion.

Federal district courts also have rejected some state laws restricting abortion access, including one passed in North Dakota in 2013 that was similar to the fetal heartbeat bill passed this week in Iowa. The U.S. Court of Appeals’ 8th District, which also includes Iowa, blocked the North Dakota law, and the U.S. Supreme Court declined to hear an appeal, allowing the appeals court’s ruling to stand.

The U.S. Supreme Court, when petitioned, has declined to take up most abortion restriction laws. The high court did, in 2016, heard a challenge to a Texas law that would have forced the closure of more than half the state’s clinics that perform abortions.

By a 5-3 vote — deceased Justice Antonin Scalia had not yet been replaced — the Supreme Court overturned the Texas law.

“The chances of that happening (the U.S. Supreme Court hearing the new Iowa law) are pretty small,” said Mark Kende, director of Drake University Law School’s Constitutional Law Center. “Even though it’s a significant issue, it doesn’t necessarily seem at this point they want to change their mind on this issue.

“Really, the odds are small both of the court taking it and if they take it the odds are small of the court overturning it. Unless the composition changes.”

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That is the long play for Republicans and social conservatives — that by the time a case reaches the U.S. Supreme Court’s doorstep, there will be one or two more conservative justices on the court.

Republicans control all the levers of federal government, giving the party an almost clear path to appoint justices to the U.S. Supreme Court and other federal courts. Justices are appointed by the president and confirmed by the U.S. Senate.

“Is Roe vulnerable? Absolutely. That's one of the reasons this law passed."

- Elizabeth Nash

Senior state issues manager, The Guttmacher Institute

Already GOP President Donald Trump and the Republican-controlled Senate have appointed U.S. Supreme Court Justice Neil Gorsuch to fill the vacancy left by Scalia’s death. That vacancy was held open by the Republican-led U.S. Senate for more than 10 months to prevent Democratic President Barack Obama from appointing a justice in the final year of his second term.

The Gorsuch appointment, however, did not shift the court’s ideological balance as he replaced Scalia, another conservative.

And conservatives hope each Trump appointment to the lower federal courts gives them a better chance of the issue making it to the Supreme Court. Legal experts said what the lower courts say about the law will influence whether the high court hears it — if more conservative judges in the lower courts show signs of ruling in favor of the law, the Supreme Court may be more likely to hear it.

While Republicans and conservatives hope for a change in ideological makeup of the U.S. Supreme Court, there is no guarantee it will happen while the GOP still has control over the process.

Justice Anthony Kennedy, who has provided the swing vote in some high court rulings — he voted with the majority in rejecting the Texas law — is rumored to be considering retirement, which would give Republicans an opportunity to add another reliably conservative vote to the court.

Justice Ruth Bader Ginsburg is an 85-year-old liberal justice who has had health issues, but also maintains a workout schedule. And at least one expert doesn’t find it likely that Ginsburg will retire.

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“They’d have to carry her out,” said Carl Tobias, with the University of Richmond School of Law. “I don’t think that’s in the cards at all.”

And while Trump has more than two-and-a-half years remaining in his first term, there is no guarantee he will have the luxury of a Republican-controlled Senate that entire time.

Election forecasters are seeing signs for a potential Democratic wave in this fall’s midterm election. The minority party — Democrats in this case — historically picks up Congressional seats in the first election after a party takes power — Republicans, in this case.

And Trump’s approval ratings are mired in the low 40s, creating another signal that Democrats are poised to fare well at the ballots in November.

If Democrats regain control of the U.S. Senate, they will have the authority to reject a Trump nomination to the court.

‘shifting sands’

“A lot of this hinges on the makeup of the court,” said Elizabeth Nash, senior state issues manager with the Guttmacher Institute, which provides research on women’s reproductive health care issues and advocates for pro-abortion rights policies. “I think there are some shifting sands in the political landscape that could have an effect on whether or not this is the path that this bill takes.

‘From abortion opponents’ perspective, are the stars going to align? There are a lot of steps in the way.”

But Nash and other experts agree it is possible.

“Is Roe vulnerable? Absolutely. That’s one of the reasons this law passed,” Nash said.

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Regardless of the final outcome, the legal process could be extensive and expensive for Iowa taxpayers.

North Dakota spent more than $300,000 defending its law, according to records obtained by the Associated Press.

Anti-abortion advocacy groups have said they would help the state defend the law to help contain costs. A spokesman said the Iowa Attorney General’s Office has not determined whether it would accept outside help defending the new law, and that accepting such help is not common.

“They’re going to be on the hook for attorneys’ fees if the plaintiffs prevail. They could be looking at whatever time the plaintiffs’ counsel spend, they will be reimbursed, and the citizens of the state will pay that,” Tobias said.

“I know (pro-life advocates) think that doesn’t make any difference, that no price is too high. But that is the reality, and that could be hundreds of thousands of dollars.”

l Comments: (515) 681-7388; erin.murphy@lee.net

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