DES MOINES -- With a Marine Corps’ “oorah,” lawmakers on both sides of the issue are girding for a new battle over abortion during their election-year session of the Iowa Legislature.
Republican Gov. Kim Reynolds fired the first salvo during her Condition of the State address by telling legislators Tuesday that “it’s time and, unfortunately, it’s necessary” for them to protect the unborn by starting the process of amending Iowa’s constitution to make clear it “does not grant a right to an abortion.”
Her call for the new strategy against abortion rights — coming after a judge struck down an attempt she signed into law last year — drew a prolonged standing ovation from Republicans, who hold majorities of 32-18 in the Iowa Senate and 53-47 in the Iowa House.
And it was punctuated by Rep. Steve Holt’s “oorah” battle cry, picked up in a statewide broadcast of the speech.
Those who oppose abortion rights decried judicial ”overreach” by the Iowa Supreme Court that must be challenged. But those in favor of keeping abortion rights charged Republican politicians with trying to strip rights from women.
Holt, a Denison Republican, said his spontaneous outburst was prompted by his appreciation for the governor’s highlighting the issue and the need for lawmakers to respond to what some see as a “radical overreach” of judges to create an abortion right not specified in the Iowa Constitution.
“When the Iowa Supreme Court overturned our 72-hour waiting period and our legislation that prevented abortion after the heart beat is detected, they created a fundamental right to abortion subject to strict scrutiny in the Iowa Constitution — an even higher standard than the federal government has imposed,” Holt said in an interview.
In 2018, a divided Iowa Supreme Court struck down the law requiring a waiting period, saying it violated the right to equal protection under the Iowa Constitution. Importantly, the court ruled it applied the standard of “strict scrutiny” in weighing the question of abortion rights to ensure the statute was “narrowly tailored to serve a compelling state interest.”
It was because of that heightened level of review the “heart beat” challenge never actually went before the state Supreme Court. A district court judge struck down the law and Reynolds reached an ”extremely difficult decision” not to appeal to the high court.
“I think their ruling was a challenge to the way our very government is supposed to work,” Holt said. “In creating that fundamental right to abortion subject to strict scrutiny, we’re not sure that any of our current restrictions would hold up. Would the 20-week (ban) hold up? Will the requirement for the doctor to offer an ultrasound hold up, (or) mandating taxpayers to pay for abortions?”
Senate Republicans wasted no time, using the session’s first week that generally is marked by speeches, ceremony and administrative chores to launch Senate Joint Resolution 21 — legislation seeking to bring the issue directly to Iowa voters as early as the 2022 general election.
The language of the resolution — which would have to pass in the exact same form both this year and by the next General Assembly elected in November before it could be placed on the 2022 ballot — declares the Iowa Constitution “shall not be construed to recognize, grant or secure a right to abortion or to require the public funding of abortion.”
Drew Zahn, communications director for the Family Leader, said the language is modeled after similar constitutional amendments in Alabama, Rhode Island, Tennessee and West Virginia and being considered this year in Louisiana.
The Tennessee amendment survived a legal challenge when it was upheld by a federal appeals panel and the U.S. Supreme Court declined to take it up. But, as Zahn noted, the appeal had to do with the process of counting votes and not with the amendment’s substance.
Abortion opponents rebuffed by Iowa’s courts now are focused on the state constitutional battle. The 2018 Iowa Supreme Court decision threw into question whether any legislation limiting abortion rights would withstand the strict scrutiny standard.
“It extended far beyond the scope of Roe v. Wade,” Zahn said. “By creating a fundamental right that cannot be limited except by ‘strict scrutiny,’ what the court did was set a standard so high that very few restrictions could stand, and it opens up Iowa to virtually unlimited abortion at any time for any reason. ... If that precedent is allowed to stand, we could see Iowa become the most unrestricted, liberal abortion state in the country.”
Elizabeth Nash, senior state issues manager at the Guttmacher Institute, a New York research organization that studies reproductive health issues, said no state has a provision in its constitution that explicitly protects abortion rights and access. But some courts have ruled the state constitution protects abortion rights because of a right to privacy or a right to liberty.
Efforts are underway in Vermont and New Hampshire to add specific protections for abortion rights into the state constitution, Nash noted, but added “we’ve seen attempts to amend state constitutions to restrict the right to abortion more often.”
What is happening in Iowa may be part of a trend toward a strategy of amending state constitutions to make it harder to strike down restrictions in court, she said.
But Nash noted there have been mixed results, with some states successfully amending their constitutions on specific abortion restrictions but efforts failing in others.
“Abortion remains a front-burner issue in state legislatures across the country,” Nash said. “Over half of the state legislatures have abortion restrictions and bans pending.”
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Sen. Jake Chapman, R-Adel, said SJR 21 does not ban abortion in Iowa.
“It doesn’t stop one abortion in Iowa, but it makes the Iowa Constitution silent so that were there to be future restrictions on Roe v. Wade, such as a 20-week ban or a heartbeat ban being upheld as constitutional, then Iowa could follow suit,” he said. “As it currently stands, no matter what is done on the federal level, Iowa would still have a very liberal abortion law.”
Forces supporting abortion rights view this year’s resolution as another manifestation of some politicians’ obsession with overturning the 1973 Roe v. Wade ruling that legalized abortion nationwide and having government intrude into medical decisions that should be made by Iowa women, their doctors and families.
Rep. Mary Mascher, D-Iowa City, sat through the 25-second standing ovation that Reynolds received when she mentioned the amendment in her speech last week and said she came away shaking her head.
“I think she doesn’t realize that that is not something that Iowans would support,” Mascher said. “I think that would be a very divisive issue again and I also believe that that time has passed.
“We have got to get past this whole idea that women don’t have rights anymore to their own health care decisions,” she said. “That to me is just kind of appalling that people don’t understand that or would think that we would go back to the days when abortion was illegal and we had the back alleys and women were dying. To me, that just is a nonstarter and it doesn’t make any sense at all.”
Sen. Brad Zaun, R-Urbandale, chairman of the Senate Judiciary Committee, said there is a sense of frustration and disappointment after Republicans succeeded in passing major abortion restrictions since taking control of the Statehouse in 2016 only to have some fall to court challenges.
“What we don’t want to do is take another step back,” Zaun said. “I felt like with the heartbeat legislation based on the court challenge we took a small step back.”
This year’s abortion debate comes at a time the Iowa Supreme Court is in a period of transition, following last November’s death of Chief Justice Mark Cady and now Acting Chief Justice David Wiggins’ announcement he intends to step down in March.
That means Reynolds this year will be appointing her third and fourth justices to the seven-member court.
Currently, five of the justices have been appointed by Republican governors and two by a Democratic governor. When Wiggins retires, that will leave Brett Appel as the only Democratic appointee.
Sen. Joe Bolkcom, D-Iowa City, expressed concern that the GOP governor is “remaking the Iowa Supreme Court to be far more reactionary and conservative.”
“They hope that at some point if the court is going to decide these questions, they’ve got the right political team on the court,” he said.
Bolkcom said his hope is that Democrats succeed in recapturing the Iowa House in the November general election. That would return the Statehouse to divided government “and this issue is going to go away,” he said.
“Should it go to the voters, I expect that voters will reject it,” Bolkcom added. “I think women should have control of their bodies and have the full autonomy to make those decisions. They don’t need politicians in the doctor’s office or bedroom to help them.”
Last year brought an “unprecedented wave of bans on all, most or some abortions,” by state legislators, according to a Guttmacher Institute policy analysis.
By the end of the year, 25 new abortion bans had been signed into law, primarily in the Midwest and the South.
Iowa, where most restrictions were struck down by courts, was not included in this tally.
Four states — Arkansas, Kentucky, Missouri and Tennessee — adopted measures called “trigger bans,” which would prohibit abortion if the U.S. Supreme Court overturns Roe v. Wade.
“Supporters of the new wave of abortion bans have made it clear that they are seeking to give the U.S. Supreme Court multiple opportunities to undermine or overturn long-standing constitutional protections for individuals seeking an abortion,” the report stated.
In response to these efforts, other state legislatures — primarily in the Northeast and West — moved in the opposite direction in 2019, enacting 36 policies to protect abortion access. Guttmacher researchers found there were more protections enacted in one year “than in the entire previous decade.”
In 2019, nine states took steps to preserve access to abortion, including four states — Illinois, New York, Rhode Island and Vermont — that enacted laws affirming patients’ right to abortion.