What’s next in the fight over abortion access in Iowa?

While abortion remains legal in Iowa until roughly 20 weeks of pregnancy, lawmakers and activists on both sides of the issue are gearing up for another protracted battle.

A divided Iowa Supreme Court, in a rare 3-3 decision this month, declined to reinstate a six-week abortion ban previously blocked by state courts, but a new law could be coming.

Republican Gov. Kim Reynolds, in a statement responding to the court order, said “the fight is not over.”

Kollin Crompton, Reynolds’ deputy communications director, said the governor is considering options, but didn’t give specifics, such as calling for a special legislative session to enact stricter abortion laws.

The governor’s office would not say whether Reynolds plans to propose her own legislation on abortion restrictions, or whether she will she work with Republican legislators through the legislative process.

Republicans hold large majorities in the Iowa House and Senate, and leaders of both chambers have criticized the ruling and suggested they will work toward passing new legislation.

Iowa Senate Majority Leader Jack Whitver, a Republican from Grimes, and Iowa House Speaker Pat Grassley, a Republican from New Hartford, issued statements alongside Reynolds’ immediately following the Supreme Court’s order, also expressing their disappointment in the split opinion.

Whitver said the court’s decision a year ago overturning a prior 2018 ruling establishing a constitutional right of women to terminate a pregnancy “should reasonably be considered a substantial change in the law and the injunction should have been lifted.”

“Senate Republicans have a consistent record of defending life, including the passage of the heartbeat bill,” he said. “We will work with Gov. Reynolds and the House to advance pro-life policies to protect the unborn.”

Caleb Hunter, Whitver’s spokesman, said the Senate Majority Leader did not have any comment beyond his previously released statement.

Grassley’s office did not respond to multiple messages last week seeking comment.

What are Republicans’ options?

Iowa GOP lawmakers could write another law that further restricts abortions, which would assuredly be challenged and return to the Iowa Supreme Court, where justices would be required to determine whether a different legal standard of review should now be applied, said Drake University law professor Sally Frank.

Republicans also could see through a proposal to amend the Iowa Constitution to clearly state it does not guarantee an Iowan’s right to abortion. Amending the state constitution requires passage through consecutive two-year sessions of the Iowa Legislature, plus a public vote. Lawmakers have approved the proposed amendment once; they would need to pass it again by 2024 and then put it to a public vote.

Republicans also have multiple options as to when they take their next step. The regular work of the 2023 Iowa Legislature concluded in early May, but Reynolds could call for a special session. Otherwise, the next regular legislative session begins in January.

Anti-abortion advocates in the state said they are encouraging state lawmakers and the governor to look at all the options on the table, including a special legislative session to pass another version of the fetal heartbeat bill.

Maggie DeWitte, executive director of the anti-abortion group Pulse Life Advocates, formerly Iowa Right to Life, says the overturning the fundamental right to abortion one year ago has opened the door to move forward with a fetal heartbeat abortion ban, and they will continue to work on ending abortion.

“We are going to support the quickest measure that we can move forward to save babies’ lives in the womb,” DeWitte said. “At this point, everything is a possibility and we are looking at all of the different avenues available to us, which includes a heartbeat bill or something similar.”

Additionally, DeWitte said the group will continue to advocate for legislation that would define life starting at conception, as well as the constitutional amendment.

“The people of Iowa spoke when they elected our pro-life Legislature and governor,” she said. “They’re speaking very loudly that they expect pro-life legislation to be passed here in our state.”

Iowa Democrats argue the vast majority of Iowans support legal access to abortion care. A Des Moines Register/Mediacom Iowa Poll from March found 61 percent of Iowa adults believe abortion should be legal in all or most cases, while 35 percent said the procedure should be illegal in most or all cases.

More than two-thirds of Iowa women said abortion should be legal in most or all cases.

Anti-abortion groups meanwhile point to new polling commissioned by Susan B. Anthony Pro-Life America that the group is using to persuade Republicans to back a 15-week national ban.

The poll of 1,000 voters nationwide found 77 percent of respondents support at least some prohibition to abortion, with exceptions for the life of the mother, rape and incest.

How we got here

The blocked 2018 “fetal heartbeat” law would have prohibited abortions from being performed in the state once cardiac impulses can be detected, roughly around the sixth week of pregnancy, which often is before an individual is aware they are pregnant. Abortion rights advocates say such a prohibition would end 98 percent of the now-legal abortions in Iowa.

The law has exceptions for rape, incest, preserving the life of the pregnant person, and fetal abnormalities that are incompatible with life.

Supporters of the bill say the presence of a heartbeat indicates life. However, some major medical organizations, like the American College of Obstetricians and Gynecologists, note that what is detected at six weeks is not a heartbeat, but instead electrical impulses, and that an actual heartbeat does not occur until roughly 17 to 20 weeks of pregnancy.

Opponents, including Planned Parenthood, say the bill restricts a woman’s ability to make decisions about her body with her doctor.

Reynolds signed the bill into law in 2018, but it was blocked by the Polk County District Court and never enforced. The District Court ruled the bill unconstitutional, saying it violates the due process and equal protection provisions of the Iowa Constitution.

At the time, legal protections for abortion rights did not allow for such a strict abortion ban. That changed a year ago, when the Iowa Supreme Court reversed a 2018 decision, now saying the Iowa Constitution does not provide a fundamental right to an abortion. The U.S. Supreme Court soon after reversed the decades-old Roe v. Wade decision, removing the federal right to an abortion and sending the issue back to states.

After that, Reynolds asked the courts to reconsider the “fetal heartbeat” ban.

But rather than ruling on its merits, the deadlocked justices left in place the District Court’s permanent injunction largely on procedural grounds, noting the unprecedented scope of the legal ask made by Reynolds.

“In our view it is legislating from the bench to take a statute that was moribund when it was enacted and has been enjoined for four years and then to put it in effect,” Justice Thomas Waterman wrote for the three justices who denied the state’s request to reinstate the law.

Waterman argued when enacted in 2018, the law had “no chance of taking effect.”

“To put it politely, the legislature was enacting a hypothetical law,” he wrote. “Today, such a statute might take effect given the change in the constitutional law landscape. But uncertainty exists about whether a fetal heartbeat bill would be passed today. To begin, a different general assembly is in place than was in place in 2018, with significant turnover of membership in the intervening three election cycles.”

Additionally, the Iowa Legislature has not voted to approve the constitutional amendment that passed in the last assembly, stating that there is no constitutional right to abortion, Waterman wrote.

Decision buys ‘another year’ of legal abortion in Iowa

Whether state lawmakers call a special session or return to the statehouse like normal in January, Frank, the Drake University law professor, anticipates Republicans will pass further abortion restrictions, which will spark a new legal battle.

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Whatever they pass, be it another six-week ban or something else, will likely be challenged by Planned Parenthood and the American Civil Liberties Union and taken back to District Court.

There, Frank expects it will again be blocked for creating an undue burden on someone’s access to abortion, inevitably landing back before the Iowa Supreme Court, this time to establish the newly defined level of legal scrutiny that should be applied to abortion regulations in Iowa.

In the wake of Iowa and U.S. Supreme Court rulings reversing a fundamental right to abortion, abortion opponents argue a new “rational basis” test now applies, which would open the door to banning abortion in Iowa.

To pass the test, laws need only be “rationally related to a legitimate governmental interest.”

“I expect that the court would find that the standard of review is rational basis and uphold the ban,” Frank said.

All of the justices were appointed by Republican governors and five were appointed by Reynolds.

Whatever the next action on abortion is, there will be a long road ahead in court, Frank said.

“We’ve gotten another year, basically,” of legal abortion in Iowa, she said. “A ban would likely pass (the Republican-controlled Iowa Legislature). The questions then becomes what are the exceptions, if any.”

Frank said she anticipates lawmakers will likely also pass a constitutional amendment saying Iowa does not recognize any right to abortion.

“They can pass a ban, but they won’t be able to end abortion,” Frank said. “Iowa women with resources will go to states where they can legally have an abortion. And poor Iowa women will engage in self-harm to self-abort, or go to back-alley abortions,” as was done before abortion was made legal.

“And we will have women dying,” due to the complications of unsafe abortions, Frank said.

Republican lawmakers undecided on special session

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Iowa Rep. Steve Holt, a Republican from Denison, who believes “life should be protected from conception to natural death,” said GOP lawmakers are undecided about whether to return for a special session to pass a new abortion ban, or wait until next year.

Holt said he’s inclined to again pass the six-week ban and force the Iowa Supreme Court to rule on its merits, rather than procedure.

He also said he doesn’t foresee the need to move ahead with a constitutional amendment in the wake of the Iowa Supreme Court’s ruling overturning the fundamental right to an abortion. Holt led passage of the constitutional amendment bill during the 2021 session, prior to the 2022 court ruling.

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Rep. Brent Siegrist, an assistant House majority leader and a Republican from Council Bluffs, said the issue is best left to be worked out during the next regular legislative session that begins in January.

“I think there’s more than a few complicating factors — the constitutional amendment, the current political mood, exemptions in the original bill and whether they stay or are expanded,” Siegrist said. “I don’t know if attitudes have changed since we passed the bill, but it’s a pretty volatile political issue” to try to tackle in a abbreviated special session.

Iowa evangelical leader Bob Vander Plaats, president of the Christian conservative group The Family Leader, wants state lawmakers to take action before the regular session in January.

“We’ll support them in the direction that they want to take it,” Vander Plaats told The Gazette. “My recommendation would be is that they would call a special session early next month, repass the heartbeat bill at minimum, and run it through the courts so the courts now know we’re serious” about protecting unborn lives.

He said his group has backed away from the constitutional amendment after justices ruled there is no fundamental right to abortion under the Iowa Constitution subject to strict scrutiny.

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Vander Plaats has said the three justices on the Iowa Supreme Court who blocked reinstating the fetal heartbeat ban should resign, be impeached or be ousted. He led a successful campaign in 2010 to oust three other justices after the court legalized same-sex marriage in Iowa.

Vander Plaats called the court’s order "disrespectful to Iowans … and their own court.“

He cited the opinion from the three justices who voted to overturn the lower court’s ruling, Christopher McDonald, Matthew McDermott and David May.

“It isn’t for us to dictate abortion policy in the state, but simply to interpret and apply the law as best we can in cases that come before us,” McDermott wrote. “We fail the parties, the public, and the rule of law in our refusal today to apply the law and decide this case.”

Vander Plaats argues Waterman, Chief Justice Susan Christensen and Justice Edward Mansfield “violated their oath” and “went outside their constitutional parameters” as “an activist court” in voting to let stand the District Court’s permanent injunction of the law.

Frank, the Drake law professor, called the argument “absurd.”

“Impeachment has to do with conviction of a felony and high crimes and misdemeanors,” said Frank. “You don’t get impeached for disagreeing with a ruling.”

Holt, while calling the court’s order “egregious,” threw cold water on the notion of impeachment.

“I understand the argument there, but I also believe we have to be very careful when we talk about impeachment of justices because we disagree with their ruling,” Holt said.

Connie Ryan, chairperson of Justice Not Politics, said Vander Plaats’ attack on Iowa’s Supreme Court justices politicizes the courts for political gain.

“Contrary to Bob Vander Plaat’s political point of view, Iowa’s Supreme Court justices meet all legitimate standards to serve the people of Iowa,” Ryan said in a statement. “Just because you disagree with a ruling does not mean the justices are not qualified. Iowans see through Vander Plaats’ political charade and will continue to support Iowa’s fair and impartial judicial system.”

Vander Plaats was also among a panel of anti-abortion leaders who last week called upon GOP presidential candidates to embrace a national abortion ban to win the Republican Iowa caucuses. The evangelical leader urged presidential front-runners to embrace the issue with a clear stance.

Some in the party, however, attribute a poor national showing in the 2022 midterms in part to unpopular messaging and policy on abortion. Opponents, too, have warned of a potential political backlash to a new abortion restriction, highlighting failed anti-abortion ballot measures in Kansas and Kentucky last year.

Democrats pledge to protect abortion rights

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During a news conference last week at the Iowa Capitol in Des Moines, leaders in the Iowa Democratic Party said they expect statehouse Republicans to introduce legislation that will restrict abortions, and that they will make some effort to change the makeup of the Iowa Supreme Court or the language in the Iowa Constitution.

Democrats will work to stop those efforts, and make their case to Iowans as to why, Iowa Democratic Party leaders said.

“We will continue to stand up and speak to the damage that the bills that Republicans have and will propose will cost Iowa families,” Iowa House Minority Leader Jennifer Konfrst, of Windsor Heights, said at the news conference.

“There are unintended consequences all over what Republicans want to do in this state, and there are women’s lives who are at risk with some of their proposals,” Konfrst said. “And we’re going to be loud and proactive about what it is that we’re going to do to stop this.”

She said statehouse Democrats don’t know specifically what to expect from Republicans in regard to abortion legislation, but are prepared to anything.

"They have to find consensus within a pretty extreme caucus, within another extreme caucus, and with the governor,“ Konfrst said. ”So their negotiations are not thinking about what do Iowans want. They’re thinking about, ‘What can we pass to appease the special interests?’ And so they’re not considering a lot of things that are what you should consider when writing policy. They’re considering politics.”

She also said Iowa Democrats will push back at any conservative effort to have sitting Iowa Supreme Court justices removed or change the way Iowa judges are nominated to the courts.

“This is absolutely way out of touch with what Iowans expect, and it is out of touch with what the system is developed to do,” Konfrst said. “Bob Vander Plaats is a special interest representative, and if he wants to oust judges, that’s his opinion. But to engage elected officials, and doing it in a way that would usurp their independence is absolutely unacceptable and inappropriate.”

Comments: (319) 398-8499; tom.barton@thegazette.com