Making abortion statement trumps stopping abortion clinic

On a mostly party-line vote, the Iowa House passed the country's most restrictive late-term abortion ban yesterday. The move put House Republicans on record opposing abortions after 20 weeks gestation, but in effect ends any chance that Omaha-based Dr. Leroy Carhart will face legal obstacles to opening a new abortion clinic in Iowa.

Details on yesterday's House vote and the amended Senate File 534 are after the jump.  

Earlier this year the Iowa House passed House File 657, a bill banning most abortions more than 20 weeks past fertilization. The bill was modeled on a Nebraska statute, with the intention of deterring Dr. Carhart from opening a clinic in Council Bluffs. House File 657 stalled in the Senate Government Affairs committee, and Republican efforts to bring it to a floor vote failed.

Meanwhile, Senate Democrats introduced Senate File 534 last month as a way to block Carhart from opening a clinic without enacting new restrictions on reproductive rights. The Democratic approach set out new certificate of need requirements for "specialized outpatient surgical facilities," defined as those in which "surgical abortion procedures are performed after the fetus has attained a postfertilization age of twenty weeks or more." Republicans objected that the bill spelled out a legal path for opening a late-term abortion clinic in Iowa. Democrats countered that the bill's wording made it unlikely that a certificate of need would be approved for any such facility. Senate File 534 passed the upper chamber on a party-line vote.

The Iowa House Journal for June 8 (pdf) details what happened when the House took up Senate File 534 yesterday. Ways and Means Committee Chair Tom Sands offered an amendment drafted by his committee, which replaces everything after the enacting clause with the following:

1. Any person who intentionally terminates a human pregnancy, with the knowledge and voluntary consent of the pregnant person, after the end of the second trimester of the pregnancy a gestation period of twenty completed weeks where death of the fetus results commits feticide. Feticide is a class "C" felony.

2. Any person who attempts to intentionally terminate a human pregnancy, with the knowledge and voluntary consent of the pregnant person, after the end of the second trimester of the pregnancya gestation period of twenty completed weeks where death of the fetus does not result commits attempted feticide. Attempted feticide is a class "D" felony.

4. This section shall not apply to the termination of a human pregnancy performed by a physician licensed in this state to practice medicine or surgery or osteopathic medicine or surgery when in the best clinical judgment of the physician the termination is performed to preserve the life or health of the pregnant person or of the fetus and every reasonable medical effort not inconsistent with preserving the life of the pregnant person is made to preserve the life of a viable the fetus.

In other words, the amendment strikes language to protect the health of the pregnant woman and bans abortion after 20 weeks gestation (which is equivalent to about 18 weeks post-fertilization), rather than after the second trimester. This language contradicts Roe v Wade, and I doubt it would stand up in court. It is even more restrictive than the wording in House File 657, which already disregarded many situations in which continuing a pregnancy could threaten a woman's health.

Democratic State Representative Janet Petersen made a point of order that Sands' amendment was not germane to the bill on certificate of need requirements for surgical facilities. House Speaker Kraig Paulsen agreed, ruling the amendment not germane. House Majority Leader Linda Upmeyer then offered a motion to suspend House rules to consider the amendment anyway. The motion passed on a 52 to 38 vote (10 state representatives were absent). Every Republican present except for Representative Tom Shaw (district 8) voted to suspend the rules. Every Democrat present voted against suspending the rules.

The House then passed Sands' amendment on a voice vote and moved to final passage of Senate File 534 without further debate. The House approved the amended bill by 54 votes to 37. Again, every Republican present except for Shaw voted yes. Democrat Dan Muhlbauer (district 51) also voted for the bill. All the other Democrats in the chamber voted no.

A few vote shifts are worth highlighting. Republicans Kim Pearson (district 42) and Glen Massie (district 74) voted for amending Senate File 534 yesterday and for final passage of the bill. Earlier this year, both had opposed legislation banning abortions after 20 weeks on the same grounds as Shaw: the bill didn't go far enough, because it would affect less than 1 percent of all abortions performed in Iowa. It's not clear what prompted Massie and Pearson to change their position on this approach.

Yesterday Muhlbauer was the only Democrat to vote for the amended Senate File 534. When the House approved the 20-week abortion ban in March, Brian Quirk (district 15), Kurt Swaim (district 94) and Roger Thomas (district 24) also voted yes. That Quirk, Swaim and Thomas all voted against the latest House bill on abortions indicates how extreme the new language is.

Mind you, House Republicans appeared not to understand the implications of the new wording:

The leader of the bill, Rep. Dawn Pettengill, R-Mount Auburn, said she was unaware until told by reporters that terminology in the heavily amended bill would ultimately create the toughest abortion restrictions in the nation.  She was pleased.

Radio Iowa likewise reported that Pettengill had no idea the bill the House approved yesterday was more restrictive than House File 657.

House Democrats were very aware of the new wording's implications. Petersen told reporters she was disgusted by the effort "to criminalize doctors of these loving young mothers who are facing horrific, heart-wrenching decisions." Iowa House Minority Leader Kevin McCarthy denounced the bill too:

"The fact that it was done, a major bill with serious health consequences for women, and we did it with no debate," McCarthy said, his voice rising as he spoke with reporters. "It's disgusting."

The irony is that by making Senate File 534 so extreme, House Republicans have virtually assured that no law will be enacted to impede new late-term abortion providers. I haven't seen any recent statement from Dr. Carhart on whether he still plans to open a clinic in Council Bluffs, but if he does, his main obstacle will be local public opinion. Iowa Senate Democrats will not approve such a broad ban on abortion rights. Even if they did, a court challenge would almost certainly strike down the new Senate File 534.

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