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Iowa Judicial Overreach and the Move Forward
Caitlyn Dixson | 09 May 2019
From our earliest education about how the United States government operates, we’ve been taught about the three branches of government, separate but equal in their power. However, what happens when one branch is no longer satisfied with their role as defined in the Constitution? What happens when one takes over power from the others?
In 2017, for the first time in many years, both houses of the Iowa Legislature, as well as the Governor’s office, were held by Republicans. This led the way for two major pro-life victories during the 87th General Assembly. First, the defunding of state family planning dollars from any abortion provider. Second, a 20-week abortion ban, which included specific prohibition of the sale of fetal body parts, as well as a mandatory 72-hour waiting period between the consultation and abortion procedure. As soon as these bills were signed into law, Planned Parenthood of the Heartland filed a lawsuit against the State of Iowa, Governor Kim Reynolds, and the Iowa Board of Medicine. The lawsuit challenged the constitutionality of only the 72-hour waiting period, no other aspects of the law were in question.
When the Iowa Supreme Court issued its decision[i] on June 2018, the Court leaped beyond the limitations of their control and turned Iowa from one of the most pro-life states in the nation to among the least. The Court declared that “implicit in the concept of ordered liberty” there was a “fundamental right” to abortion in the Iowa Constitution that can only be regulated if the state can pass the “strict scrutiny” test. The Iowa Supreme Court seized for itself the power to amend the Iowa Constitution without a vote of ‘We the People’ or even our elected representatives. Then it used its newly declared power to add a new ‘right’ to Iowa’s Constitution. This ‘right’ is even more radical than Roe, opening the door to abortion in Iowa at any time, for any reason, right up to birth. This activist decision means that every pro-life law ever passed or that could be passed in Iowa is at risk of being declared unconstitutional.
During the 2018 legislative session, a groundbreaking heartbeat bill was passed, banning abortion after a baby has a detectable heartbeat, sometimes as early as six weeks. Again, as soon as it became law, it got held up in court. On January 22, 2019, the anniversary of Roe v. Wade, Judge Michael Huppert in the Polk County District Court issued a summary judgment[ii] that the heartbeat law was unconstitutional directly based on the 72-hour ruling. This ruling took the situation from bad to worse, as it set a precedent. This ruling makes the possibility of having any and every piece of pro-life legislation thrown out, without a way to move forward. Iowa is now in the same situation with the 72-hour ruling as the nation is with Roe. We are stuck behind an adverse Supreme Court decision, waiting for something to change and for it to be overruled.
However, this is not our only option. Immediately after the heartbeat ruling, State Senator Jake Chapman and 28 of his Republican colleagues in the Senate sponsored what is called ‘The Life Amendment.’[iii] The amendment does not immediately change abortion laws or restrictions in Iowa but would serve as the check and balance where the State Supreme Court failed to recognize one. The amendment, simple but effective, takes control back from our activist judges. It speaks volumes and stands up to the Court, “Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion.” This is not radical. This kind of “neutrality” amendment simply restores the Legislature’s authority to regulate abortion, something that should have been beyond the reach of the Court, to begin with.
The amendment stalled in the Senate this year, but when the amendment passes through both the Iowa House and Senate next year, it has to be passed again by the newly elected Legislature after the 2020 election. Only then would it be brought before a vote of the people for ratification. It is a long, grueling process, and will take a lot of time, effort, and money, but it is our way forward. Without passing this amendment, we could be waiting another 46 years for the makeup of the Court to change, and for something to occur and bring the 72-hour ruling back into question. Simply, this is not an option. Even if perfect Supreme Court judges are selected, it could take decades for a majority who are willing to reverse the decision.
Even without a straight abortion ban option that would be viable when held up in court, the Iowa Legislature this year pursued a multitude of pro-life legislation. Bills including personhood, fetal homicide, and abortion funding were on the table in addition to the amendment. In the final hours of the session, in an amendment to a Health and Human Services budget bill, abortion providers became ineligible for sex education grants. This was the only pro-life bill that made it through, but the willingness to persevere through and continue in the fight to pass pro-life legislation in Iowa despite the courts’ blatant overreach, shows just how committed our elected officials are to defending life, no matter what it takes.
[i] See Planned Parenthood of the Heartland v. Reynolds. The Iowa Supreme Court decision may be viewed here: https://www.iowacourts.gov/courtcases/439/embed/SupremeCourtOpinion.
[ii] The summary judgement may be viewed here: https://assets.documentcloud.org/documents/5691334/Order-RE-Fetal-Heartbeat-Law.pdf.
[iii] Filed as SJR 9. You may view the document here: https://www.legis.iowa.gov/legislation/BillBook?ga=88&ba=sjr21.
Caitlyn Dixson, Executive Director of Iowa Right to Life.