Iowa Republicans can’t go back to 2018 to dodge fallout of their abortion ban

by Iowa Capital Dispatch
July 10, 2023

What Iowa GOP lawmakers and Gov. Kim Reynolds are planning to do in Tuesday’s special session may have started out as the most politically expedient course of action on abortion – but it could backfire in a spectacular way.

Here’s why.

Reynolds and the GOP majority under the golden dome are coming back into session at the cost of tens of thousands of taxpayer dollars to try again to pass a law banning most abortions after roughly six weeks of gestation.

No matter what they pass, this law is going straight back to court, at the cost of potentially hundreds of thousands of dollars for litigation, again at the expense of taxpayers. Its ultimate fate will not be decided before the Legislature’s regular session in January. In fact, it probably won’t be decided before the 2024 elections.

By all appearances, the GOP majority will make no substantial effort to make this new law more acceptable to the court or less punitive for the childbearing people of Iowa. The legislation introduced Friday was essentially the so-called “fetal heartbeat” law passed in 2018 – with one very important, and I think largely overlooked, exception. I’ll get to that in a minute.

Lawmakers could substantially amend or even rewrite the entire bill on the floor on Tuesday, but the GOP lawmakers and anti-abortion lobbyists we’ve talked to don’t expect that. Amendments, even small ones, can substantially add to debate time (if lawmakers follow their own usual rules) and potentially jeopardize the bill.

As in 2018, the bill would require patients seeking an abortion to have an ultrasound. Abortion would be banned if “cardiac activity” is detected, typically around six weeks after conception and before most patients even realize they’re pregnant. The original bill and the new one both state there are exceptions for rape, incest and the life of the mother – but there are few details on how an abortion can be legally accessed under those exceptions.

As we’ve seen in other states, doctors would be forced to decide, with little or no guidance, whether to risk criminal prosecution before a miscarrying patient is at death’s door due to hemorrhage, sepsis or another life-threatening complication. Most of them won’t take that gamble, leaving already bereaved and perhaps already sick patients with the cost and additional stress of traveling out of state for lifesaving health care.

The danger for pregnant Iowans goes beyond relatively rare medical complications, of course. Abortion bans have far-reaching consequences for access to all kinds of health care for women, including OB-GYN services needed for healthy pregnancies. This bill does nothing to address those issues.

This wasn’t a concern when lawmakers passed the original 2018 law because, as Justice Thomas Waterman pointed out, they knew the bill would never take effect. Roe v. Wade was still the law of the land and we had not yet seen the fallout of abortion bans post-Dobbs. It was easy to brush off as hypothetical hysteria the idea of a 10-year-old rape victim having to travel hundreds of miles for an abortion or women sent home or told to wait in a hospital parking lot because no one would treat them until they were much sicker.

Those cases have now happened in multiple states around the country. They’re real. Lawmakers cannot cover their eyes and pretend it’s still 2018.

For lawmakers to ignore deadly consequences for maternal mortality related to this law suggests one of two things:

One, the majority of GOP lawmakers don’t care if more Iowans die due to complications of pregnancy or shrug it off as God’s will. It frankly wouldn’t surprise me if that were true of some, but I have a hard time imagining that the majority could be that callous.

The second and more plausible explanation is that most majority-party lawmakers still don’t believe, even after Dobbs, that this bill will ever be enacted.  And many of them prefer it that way.

The prevailing side of the Iowa Supreme Court’s split decision made it clear the “undue burden” standard remains in place for abortion laws. That means abortion laws cannot create excessive hurdles in procuring access to abortion without serving a legitimate public interest. The majority of the court has already found that banning abortion before a woman likely knows she’s pregnant presents an undue burden.

It’s worth noting that the court could have resolved this issue back in 2022, when it gave Reynolds a major win by deciding there was no right to abortion under the Iowa constitution. Justice Edward Mansfield wrote, pointedly, that the state did not ask that the court apply a different standard. Remember that when you hear lawmakers rail at the court for its recent ruling.

Now, justices can change the undue burden standard, and this GOP-appointed Iowa Supreme Court has already shown an historic willingness to reverse itself and sweep away precedent. But lawmakers, if they were really intent on restricting abortion, would face better odds if they rewrote this law to make it more constitutionally solid based on the example of other states – Nebraska, for example. A 12- or 15-week ban would more likely stand up to a court challenge, but they’re apparently choosing not to do that.

It would take a lot more than a one- or two-day special session to work through the legal and medical issues involved in addressing either undue burden or maternal mortality. So why the hit-and-run approach? Political expediency, of course.

The special session allows lawmakers to again mollify anti-abortion special interests, put another vote on the board in favor of right to life, send the bill to court and then raise money off the issue for another five-and-a-half months before the start of the 2024 legislative session and afterward, right up to Election Day.

But there are problems with the idea that lawmakers can take their political vote without any real-life, pre-election consequences. One of them is right there in the bill – an immediate enactment date.

That means most abortions could be banned in Iowa as early as Tuesday night, if the governor signs the bill immediately upon passage. With no rulemaking in place to guide enforcement, it’s likely all abortions would just stop – including the ones that might save a pregnant patient’s life. It could take weeks for opponents of the law to get before a judge to seek an emergency injunction – and it’s possible a district court could decide to allow this law to remain in effect while litigation was pending.

It’s enormously irresponsible on so many levels, and all so Reynolds can show up at Friday’s religious conservative Family Leader summit as a pro-life hero. I wonder how many Republican lawmakers, who by all indications had little or no input into this legislation, even realize the potential for political blowback at their expense.

Iowans, the majority of whom already oppose abortion bans, won’t have to wait until after the election to see, in their own communities, the effect of a near-total abortion ban that may not ultimately survive a court challenge. If you’re a pro-life lawmaker – or a pregnant Iowan – it’s the worst of both worlds.

Iowa Capital Dispatch is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Iowa Capital Dispatch maintains editorial independence. Contact Editor Kathie Obradovich for questions: Follow Iowa Capital Dispatch on Facebook and Twitter.

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