During the closing days of the Iowa legislature’s 2021 session, Republicans accomplished one task that eluded them in 2020: getting a constitutional amendment on abortion halfway toward appearing on a statewide ballot. I expected the House and Senate to approve the measure quickly, emboldened by a larger majority in the lower chamber, where the proposal stalled last year.
Instead, Republicans spent months haggling over how the amendment would be phrased, hoping to make this effort more palatable to Iowans who currently oppose it.
FOUR PATHS TO SAME DESTINATION
Republicans want to overturn a 2018 Iowa Supreme Court ruling, which held that women have a fundamental right to abortion under the state constitutional provisions on equal protection and due process rights. Two dissenting justices, Edward Mansfield and Thomas Waterman, warned that the majority’s reasoning “would make any abortion restriction very difficult to sustain,” and could become “a stepping stone toward a ruling that Iowa’s Medicaid program must fund abortions.”
The first version of the constitutional amendment, introduced in early 2019, read simply, “The Constitution of the State of Iowa does not secure or protect a right to abortion or require the funding of abortion.” The Senate State Government Committee passed the joint resolution along party lines, but Senate leaders never brought the measure to a vote on the floor that year.
In early 2020, the Senate State Government Committee advanced a longer version of the amendment.
Sec.26. Protection of life. To defend the dignity of all human life, and to protect mothers and unborn children from efforts to expand abortion even to the day of birth, we the people of the State of Iowa declare that this Constitution shall not be construed to recognize, grant, or secure a right to abortion or to require the public funding of abortion.
The Iowa Senate approved the amendment along party lines. But it never came to a vote in the House, where Republican leaders couldn’t find 51 votes to pass it among the 53 members of their caucus.
Republicans expanded their House majority to 59-41 following the 2020 election. Soon after this year’s session convened, the House Judiciary Committee took up a streamlined version of the constitutional amendment, which read,
Sec.26. To defend and protect unborn children, we the people of the State of Iowa declare that this Constitution does not recognize, grant, or secure a right to abortion or require the public funding of abortion.
House members approved the proposal before the end of January on a mostly party-line vote. (Republicans Jane Bloomingdale, Lee Hein, and Dave Maxwell joined all Democrats in voting no.)
I thought Senate Republicans would quickly pass this legislation and declare victory. But Senate leaders waited until early April to bring up the measure. A floor manager’s amendment from Senate President Jake Chapman restored the wording the upper chamber had approved in 2020:
Sec.26. Protection of life. To defend the dignity of all human life, and to protect mothers and unborn children from efforts to expand abortion even to the day of birth, we the people of the State of Iowa declare that this Constitution shall not be construed to recognize, grant, or secure a right to abortion or to require the public funding of abortion.
Six weeks passed with no action on the amendment in the House, as Republican lawmakers negotiated behind the scenes. The fourth and final version was unveiled in an amendment offered by the House floor manager, State Representative Steve Holt. Its phrasing closely tracked the Senate’s preferred language, without the reference to mothers and replacing “protection of life” with simply “life.”
Sec. 26. Life. To defend the dignity of all human life and protect unborn children from efforts to expand abortion even to the point of birth, we the people of the State of Iowa declare that this Constitution does not recognize, grant, or secure a right to abortion or require the public funding of abortion.
Following a contentious debate on May 18, House members approved the constitutional amendment by 54 votes to 38. Again, Republicans Bloomingdale, Hein, and Maxwell joined all Democrats present to oppose the legislation.
The Senate vote on May 19 fell along strict party lines, 30 Republicans for the legislation and 18 Democrats against.
During that day’s debate, Democratic State Senator Sarah Trone Garriott denounced the “needless back and forth” between the chambers over “minute word choices.” She characterized the changes to the amendment as “posturing” by “a bunch of men trying to assert dominance over each other.”
That dynamic may have been in play, but there was another reason GOP senators insisted on their preferred wording. Anti-abortion advocates believe the phrasing will make an apparently unpopular idea into an electoral winner.
POLLING SHOWS LITTLE SUPPORT FOR CONSTITUTIONAL AMENDMENT
Introducing the revised amendment on the Iowa House floor, Holt said he believed the new language was better than what either chamber had initially proposed. Chapman told Senate colleagues lawmakers had been working to agree “on language that can be proposed to the voters of Iowa.”
To amend Iowa’s constitution, both chambers of separately elected legislatures must pass identical wording. The proposal then goes on a statewide ballot, where a majority of participating voters must approve the language.
The last two public polls on the subject indicated that while Iowans may be divided over whether abortion should be mostly legal or mostly illegal, a clear majority oppose this Republican project.
Selzer & Co’s latest statewide poll for the Des Moines Register and Mediacom found that just 31 percent of Iowa adults support amending the constitution “to say it does not recognize a right to abortion or require public funding of abortion,” while 58 percent oppose that idea. Selzer’s March 2020 Iowa poll produced similar results: 33 percent of respondents supported the amendment, while 54 percent opposed it. Iowans describing themselves as political independents were against the idea by a nearly two to one margin.
As Bleeding Heartland discussed here, Selzer’s random sample of Iowa adults may not reflect the views of registered voters or those who participate in elections. So one can’t assume these poll numbers match the views of Iowans who will cast ballots when this proposal might appear on a statewide ballot (no earlier than 2023 or 2024). But even in a low-turnout environment, a constitutional amendment backed by only a third of Iowans would likely have trouble winning a majority of votes.
The solution for Republicans is to change the focus of the debate.
CONSERVATIVES BATTLING STRAW MAN: ABORTION EXPANSION
While the constitutional amendment was in limbo, I had heard that Senate Republicans maintained their approach was backed up by private polling. Chapman and Holt did not respond to Bleeding Heartland’s inquiries about the negotiations or any survey research that may have influenced the phrasing.
Drew Zahn, communications director for the influential conservative group The FAMiLY Leader, confirmed via email that his group has advocated for language “we hoped would be appealing to the voters who ultimately must ratify it.” (emphasis added)
We did conduct polling on proposed language for the amendment and found, contrary to other publicized polling, that when Iowans understand what the amendment is actually about – restoring the voice of the people in the legislative process after radical, unelected judges attempted to silence the abortion debate without any input from voters – the majority of Iowans actually favor the amendment. Iowans overwhelmingly do NOT support the taxpayer-funded abortion or expansion of abortion to the point of a baby’s birth that the 2018 decision paves the way for. Furthermore, Iowans overwhelmingly agree that the little child in her mother’s womb – she’s a baby, and her value and voice should be heard in this debate, too.
Zahn declined to provide details about the group’s polling, such as the dates surveys were in the field, the question wording, or partisan breakdown of respondents in the sample. But he did confirm the polling “was of likely voters, not all Iowa adults.”
According to Zahn, “Legislators we talked to took our advocacy under advisement,” but The FAMiLY Leader “was not privy to” recent negotiations between House and Senate Republicans.
How close was the final version of House Joint Resolution 5 to what the conservative group had suggested? Zahn told me,
As for the final language, it was a long process, not really possible to compare language A to language B. But we are pleased that the final language is clear and should effectively return proper, constitutional government on this issue to We the People, rather than unelected and overreaching judges.
Republicans mostly stuck to that script during the last House and Senate debates on the amendment. For instance, State Representative Sandy Salmon told House members on May 18 that the proposal is intended solely to address a judicial “power grab.”
This amendment does not outlaw abortion. It only restores the legislature’s authority, and therefore the people’s authority, to regulate it. And we need that authority. That is what this amendment will do, and that is all it will do.
Holt made the same claim: “This is about letting the people of Iowa decide this issue through their elected representatives, and not the Iowa Supreme Court.” He quoted from the Iowa Supreme Court’s dissenting opinion by Mansfield and Waterman, asserting that the 2018 precedent would make “any abortion restriction very difficult to sustain,” and could lead to public-funded abortions up to the day of birth. To hear Holt tell the story, without this amendment, Iowa could join the list of states where abortions can be performed at taxpayer expense at any time in pregnancy.
That scenario is ludicrous. Iowa has banned third-trimester abortions for decades. No one proposed changing that law during the four years pro-choice Democrats controlled both chambers of the legislature and the governor’s office (2007 through 2010). In addition, Republicans enacted a law in 2017 that prohibits almost all abortions after 20 weeks gestation. Even if some politicians sought to legalize abortions later in pregnancy, Republicans who oppose abortion now control Iowa’s legislative and executive branches.
Remember what Zahn said about The FAMiLY Leader’s polling: “Iowans overwhelmingly do NOT support the taxpayer-funded abortion or expansion of abortion to the point of a baby’s birth that the 2018 decision paves the way for.”
And note that the final version of the constitutional amendment refers to protecting “unborn children from efforts to expand abortion even to the point of birth.”
Republicans appear to believe this sleight of hand will bring Iowa voters to their side, taking the focus away from their real agenda.
“THIS IS ABOUT AN ALL-OUT BAN ON ABORTIONS WITH NO EXCEPTIONS”
Iowa House and Senate Republicans approved legislation in 2018 that would have banned almost all abortions after about six weeks gestation. (A Polk County District Court judge struck down that law, citing the Iowa Supreme Court’s precedent.) The obvious goal of amending the constitution to overturn that Supreme Court ruling is to clear a path for future abortion bans with few or no exceptions.
In January, House Republicans voted down several Democratic amendments to House Joint Resolution 5, which would have preserved some aspects of Iowans’ reproductive rights. (A procedural trick on May 18 knocked the same amendments out of order, so House members would not have to vote on them again.) The upshot is that the proposed constitutional amendment has:
- no wording to clarify that it “shall not be construed” to prohibit the sale or use of any contraceptive (proposed by State Representative Christina Bohannan)
- no exceptions for pregnancies resulting from rape or incest (proposed by State Representative Marti Anderson)
- no language to clarify that it does not prohibit the disposition of embryos produced for vitro fertilization (proposed by State Representative Kristin Sunde)
- no exception for a woman “certified by a physician to be in danger of death unless the abortion is performed” (proposed by State Representative Mary Wolfe)
Many Democratic legislators spoke passionately against the constitutional amendment, and several pointed out that the Republicans’ compromise wording removed any reference to mothers. Here’s part of one speech by Bohannan, whose day job is being a University of Iowa law professor.
While Republicans have claimed their proposal is about stopping late-term abortions or public funding of abortions, Bohannan said,
That’s not what this amendment does. It completely eliminates the right to abortion altogether, under any circumstances. You don’t have a right for rape, you don’t have a right for incest, you don’t have a right to save the life of the mother, clearly. And now, it’s very explicit with this secondary amendment that eliminates mothers from the equation all together.
When questioned by Bohannan, Holt denied that Republicans are “not interested in protecting mothers.” He said they were only “trying to make the language as concise and understandable as possible.” He again cited concerns two Iowa Supreme Court justices had expressed in 2018 about late-term abortions and taxpayer-funded abortion.
“And did mothers need to be deleted from that protection in order to accomplish that goal?” Bohannan asked. Holt didn’t have a good answer but repeated his talking points about judicial overreach.
On the final day of the legislative session, State Senator Janet Petersen highlighted the danger of putting “the bodies of women and girls on the ballot” at a time when the U.S. Supreme Court is poised to strike down or eviscerate the 1973 Roe v Wade precedent.
“This is a dangerous moment,” Petersen said. “Americans and Iowans may very well see what it is like to live in a world without protections for the bodies of women and girls.”
Like several other House and Senate Democrats, Petersen noted the irony of Republicans promoting the idea of “bodily autonomy” when passing legislation to forbid mandatory face masks or COVID-19 vaccinations. “You protected your nose, your mouth, and your arm. I am simply saying, a woman’s body deserves protections as well.”
Previewing the case pro-choice advocates will make if the amendment comes before Iowa voters, Petersen said, “This constitutional amendment takes away personal decision-making power from women, taking away our freedom to make a personal decision about what is best for our bodies, our future, our families, and our pregnancies. This is about an all-out ban on abortions with no exceptions. This is about oppression–the oppression of women and girls.”
P.S.–Most politics-watchers assume that if Republicans keep control of the House and Senate after the 2022 elections and approve the abortion amendment again the following year, Iowans would vote on the language in November 2024. While most constitutional amendments have appeared on general election ballots, the state constitution allows the legislature to schedule such a vote on any date. At least two times, votes on proposed amendments to Iowa’s constitution have coincided with a June primary (the 1916 vote on women’s suffrage and the 1962 vote on replacing judicial elections with a merit-based selection system).