Iowa Capital Dispatch
June 19, 2023
The Iowa Supreme Court’s surprising deadlock on the state’s “fetal heartbeat” bill sets up a difficult and potentially divisive election-year debate among Republicans in the Iowa Legislature – and not just about abortion. It also is likely to inspire even more Republican zeal to weaken the separation of powers and judicial independence in Iowa.
Gov. Kim Reynolds and GOP lawmakers have put considerable effort into reengineering the courts to their advantage. They revamped the membership of the judicial nominating commission in 2019, to give the governor more power over the people in charge of vetting and recommending applicants for positions on Supreme Court and Court of Appeals.
Every single one of the Iowa Supreme Court justices are now Republican appointed and the chief justice, Susan Christensen, was a Reynolds appointment. Lawmakers also gave Reynolds the authority to rewrite the Judicial Branch’s budget instead of submitting the courts’ request directly to lawmakers.
It appeared that their efforts had been phenomenally successful just a year ago, when the court reversed itself and declared there is no right to abortion under the Iowa Constitution. The move came just after the U.S. Supreme Court overturned Roe v. Wade, and all justices except Christensen joined the majority opinion.
And yet, when Reynolds called on her conservative dream team to reinstate a 2018 law outlawing the vast majority of abortions in the state, three justices balked. Three others sided with the governor, but the recusal of Justice Dana Oxley left the court in a tie. That automatically means the district court decision, which blocked the law, was upheld.
This was no wishy-washy decision. Justice Thomas Waterman, who also wrote for Christensen and Justice Edward Mansfield in refusing to reinstate the law, remarked: “It would be ironic and troubling for our court to become the first state supreme court in the nation to hold that trash set out in a garbage can for collection is entitled to more constitutional protection than a woman’s interest in autonomy and dominion over her own body.”
The reference was to a 2021 decision that found police need a warrant to search a suspect’s trash. Considering that Mansfield wrote and Waterman joined the majority opinion to remove the constitutional protection for abortion rights a year ago, it’s eyebrow-raising to hear them express any kind of concern for a woman’s “dominion over her own body.”
The opinion, while not precedent-setting because it lacks a court majority, also makes it clear that at least three of the seven justices would keep in place the stricter “undue burden” standard for reviewing abortion laws.
Bob Vander Plaats, CEO of the Christian conservative organization Family Leader, has already called for a campaign against retaining the three justices who voted against reinstating the heartbeat law.
Judicial retention was never meant as a politically driven referendum on controversial rulings. But it’s been used that way in the past. The last time there was an organized anti-retention campaign was in 2010, when three justices who supported the legalization of same-sex marriage, were removed from the court by Iowa voters.
In 2010, Iowans ousted three Iowa Supreme Court Justices for disregarding the separation of powers. These three dissenters have shown blatant disrespect for the constitution, the people’s representatives and we the people. They should resign, be impeached or be ousted. https://t.co/uD4yUITxqP
— Bob Vander Plaats (@bobvanderplaats) June 17, 2023
Advocates of a fair and impartial court should take this threat seriously. A majority of Iowans believe abortion should be legal under most circumstances, according to the most recent Des Moines Register/Mediacom Iowa Poll on the subject, taken last year. But a majority of Iowans typically do not turn over their ballot and vote on judicial retention. And an organized and well-funded campaign could overcome public opinion in this situation.
Don’t expect Reynolds and the gang to be satisfied with letting voters decide on judge retention. Get ready for GOP legislative proposals to clamp down even more on judicial independence.
GOP lawmakers could try to further politicize the courts by doing away with judicial nominating commissions entirely and letting governors directly appoint justices instead of having to pick from a commission’s nominees. Of course, that would require a constitutional amendment. It also would mean any future Democratic governors could more easily pack the courts.
Or, we may see more proposals like this 2021 bill from Sen. Sandy Salmon, which would effectively give lawmakers the power to put certain Supreme Court rulings on hold for a year, while lawmakers held hearings to try to subject justices to public pressure to change their opinion in the case. If no justices budged, a two-thirds majority of the Legislature could vote to overturn the court’s decision.
Lawmakers had the wisdom to kill that patently unconstitutional bill two years ago. Who knows what they might do if sufficiently peeved this year. Lawmakers this year withheld money for five new desperately needed district judges, and they weren’t even that mad at the courts.
It is a dangerous time for the separation of powers and the independence of Iowa’s judiciary. This issue has far greater ramifications than the familiar partisan debate over abortion laws. Iowans who care about justice and the rule of law should be on alert.
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: info@iowacapitaldispatch.com. Follow Iowa Capital Dispatch on Facebook and Twitter.
