A coalition of true believers, cowards, and cynical manipulators worked together in the Iowa House and Senate last night to pass what will be the country's most extreme anti-abortion law as soon as Governor Kim Reynolds signs the legislation.
Senate File 359 began its journey through the legislature last year as a bill banning the sale of fetal body parts. It was pointless, since no abortion clinics in Iowa have participated in fetal tissue sales, but not unconstitutional. After clearing the state Senate with bipartisan support in March 2017, it lay dormant in the House Human Resources Committee.
House Republicans revived the fetal parts bill this year as an alternative to a near-total abortion ban the Iowa Senate approved along party lines in February. As amended in House committee, the bill would prohibit almost all abortions after a fetal heartbeat could be detected, which usually happens around six weeks gestation, before most women are aware they are pregnant. However, it did not specify criminal penalties for doctors who terminate pregnancies beyond that point.
House leaders brought Senate File 359 to the floor in the early afternoon on May 1, with a lengthy amendment designed to bring the last few reluctant Republicans around. That amendment ostensibly created exceptions for rape, incest, and fetal anomalies incompatible with life (more on that point below).
Nine hours of deliberations and caucusing ensued, as the majority rejected one Democratic amendment after another. Lawmakers called ten points of order during debate, with emotions running high on both sides. Video clips of the contentious proceedings are available here.
Around 11:00 pm, House members approved the amended bill by 51 votes to 46. Every Democrat present voted no, as did six Republicans: Chip Baltimore, Jane Bloomingdale, Lee Hein, Dave Maxwell, Andy McKean, and Louis Zumbach. (Side note: Maxwell was the only Republican in either chamber to vote against last year's 20-week abortion ban.) UPDATE: Hein explained to Sarah Beckman of ABC-5 News that he "could not support the bill" because it made no exceptions for people like his daughter, who learned earlier this year she was carrying a child with unsurvivable abnormalities.
Senate GOP leaders were determined to bring up the abortion ban as soon as possible. After some time in caucus, the Senate reconvened shortly before 1:00 am for a spirited debate on the bill. That video is worth your time. Finally, the majority concurred with the House amendment and gave final approval to the bill around 2:20 am. Independent Senator David Johnson joined 28 Republicans to vote yes. All 17 Democrats who were present voted no.
A similar effort to add "heartbeat" language to last year's 20-week abortion ban failed to gain enough support among House Republicans and was dropped in committee. As recently as a few days ago, House GOP leaders did not appear to have 51 votes to ban abortion after six weeks.
How did this unconstitutional bill reach the governor's desk?
TRUE BELIEVERS HELD THE STATE BUDGET HOSTAGE
Some Iowa GOP lawmakers have long pushed for extreme anti-abortion legislation and watched with growing frustration as nearly all of their proposals failed to advance. Over time, fewer of their colleagues co-sponsored bills that declared life to begin at conception. "Personhood" legislation never made it out of a House or Senate committee, even in 2017, when Republicans controlled both chambers. Leadership thwarted efforts to force House or Senate floor votes on such bills.
This year, some of the most committed abortion opponents used the only real leverage they had. Both Radio Iowa's O.Kay Henderson and the Des Moines Register's Brianne Pfannenstiel reported on May 1 that some GOP senators pledged to withhold their support from state budget bills until the House approved a "heartbeat" abortion ban.
Senator Rick Bertrand spoke openly about the strategy to the Des Moines Register: “There is a group of us that were more than willing to sit here until July 1,” the start of the next fiscal year. I have not been able to confirm everyone who was part of the effort, but the holdouts likely included Brad Zaun, Jake Chapman, Jason Schultz, and/or Dennis Guth.
The true believers know their abortion ban is unconstitutional. During last night's debates, House floor manager Shannon Lundgren, Senate floor manager Chapman, and Bertrand all spoke openly about the bill as a vehicle to overturn the U.S. Supreme Court's 1973 decision in Roe v Wade.
Perhaps because they don't accept long-held legal standards as legitimate, the true believers aren't overly concerned with the details of their bill. That led to some cringe-worthy moments, as proponents were unable to answer basic questions about the new House amendment. For example, Lundgren and Sandy Salmon drew blanks when quizzed by House Democrat Brian Meyer (starting around 3:12:00). A short while later, Lundgren struggled to answer State Representative Mary Wolfe's questions about problematic provisions (4:01:00). Senator Nate Boulton grilled Chapman for several minutes about wording that judges may have trouble interpreting, as well as passages that open the door to criminal prosecutions of doctors or nurses (starting around 1:17:30). The man running the bill in the Senate repeatedly had to admit he didn't know the answer.
While the most dedicated anti-choice lawmakers can claim credit for getting this legislation to the governor, they couldn't have done it alone.
COWARDS PULLED BILL OVER THE LINE IN THE HOUSE
As mentioned above, the six-week ban cleared the House with exactly 51 votes, the bare minimum to send the bill back to the Senate. Although no pro-choice Republican has served in the Iowa legislature since Libby Jacobs retired from the House in 2008, at least
four five Republicans who supported the amended Senate File 359 were previously on record opposing such extensive state interference in a woman's medical decisions. Any of them could have defeated the bill last night, but none had the courage.
Ashley Hinson is arguably the biggest hypocrite in this group. As a brand-new legislator in January 2017, she told a mostly Democratic audience at a League of Women Voters forum that she supported access to reproductive health care services. She had used Planned Parenthood's Cedar Rapids clinic for routine preventive care herself, Hinson added.
And so, from that perspective, I tend to think the government should stay out of–-maybe that makes me Libertarian on this issue, I don’t know–-I think the government should stay out of women’s health care decisions, typically.
Meyer tried to pin Hinson down yesterday on the problems this bill would create for doctors (3:17:00).
Meyer: Representative Hinson, were you aware that there is no immunity or exemption for doctors in this bill that perform these acts?
Hinson: Not specifically, I wasn't aware.
Meyer: Would you agree with my statement, then, that they would in fact be able to be charged by a county attorney for murder?
Hinson: I think, well, that would be up to the county attorney to look at the code section and make the determination if they believe that they can prove that case and make their charge.
Meyer: You understand, then, on page 5 that there's a specific exemption for a woman, the exemption is "shall not be construed to impose civil and criminal liability on a woman" upon which an abortion is performed in violation of this section. Why wouldn't you add in this bill the same exemption against criminal prosecution for a doctor?
Hinson: (pause) Um ... I don't actually have a good answer for that. I know that we, again, we put our faith in the county attorneys, to look at the facts of the case, and decide whether or not that warrants going forward with a criminal charge. There are many cases, as you know, since you do practice the law every day, that actually, county attorneys cannot prove the facts of a case. This may be very well one of those circumstances going forward.
Meyer pressed again: wouldn't it be prudent to add a specific exemption for doctors, for instance, those who believed a medical emergency warranted an abortion? Theoretically they could be charged with murder if the emergency didn't come to pass. Hinson defended the bill as written, saying that if doctors "are keeping their records and they are thoroughly documenting this, I believe that there is no extra need for an exemption or protection."
So much for Hinson's professed belief that "the government should stay out of women’s health care decisions, typically."
First-term Representative Michael Bergan was the only Republican to vote against the six-week ban on the House Human Resources Committee in March. He did not speak during that meeting, and I'm not aware of any public comments yesterday explaining why he changed his vote. The last-minute amendment permitted abortions after a fetal heartbeat was detected when "medically necessary," defining that term as follows:
15 4. “Medically necessary” means any of the following:
16 a. The pregnancy is the result of a rape which is reported
17 within forty-five days of the incident to a law enforcement
18 agency or to a public or private health agency which may
19 include a family physician.
20 b. The pregnancy is the result of incest which is reported
21 within one hundred forty days of the incident to a law
22 enforcement agency or to a public or private health agency
23 which may include a family physician.
24 c. Any spontaneous abortion, commonly known as a
25 miscarriage, if not all of the products of conception are
27 d. The attending physician certifies that the fetus has a
28 fetal abnormality that in the physician’s reasonable medical
29 judgment is incompatible with life.
Wolfe highlighted several problems with those exceptions while questioning Lundgren on the House floor (4:01:00). "Rape" is not defined in the bill or anywhere in Iowa Code. Furthermore , 45 days is a narrow window. Children are often afraid to tell anyone about a rape until after they are visibly pregnant, which would occur well after six and a half weeks. (Lundgren countered that the law would encourage girls and women to come forward sooner after being assaulted.) Wolfe speculated that a woman desperate to obtain an abortion might falsely claim to be an incest victim to get a doctor to perform the procedure.
I would appreciate insight from constituents who have communicated with Bergan about his support for Senate File 359.
Representative Dave Heaton hesitated before voting "heartbeat" language out of committee in March. He had subsequently said he would not support the abortion ban on the House floor. However, he explained on May 1,
"There were (originally) so many restrictions on the mother’s decision. It troubled me because it was just too restrictive," he said. "And now we’ve loosened it up (creating exceptions for) incest, rape, the life of the mother, fetal anomaly. It’s enough for me to get on board."
To qualify for the rape exception, a woman would need to have reported the assault within 45 days, possibly before she knew she was pregnant.
Moreover, severe fetal anomalies often are not detected until after 20 weeks. A law Iowa Republicans approved last year already banned almost all abortions after that point in pregnancy, with no exceptions for conditions incompatible with life outside the womb.
Heaton is retiring, so he has even less excuse than Hinson or Bergan for not standing on principle. He doesn't have to worry about angry conservatives tanking his re-election prospects.
The same goes for Representative Rob Taylor. He was the lone House Republican to vote against a 2015 bill requiring ultrasounds for all women seeking to terminate a pregnancy. The husband of a doctor, Taylor has long claimed to oppose legislation that gets between patients and health care providers, according to several of his constituents who have discussed the issue with him.
Numerous House Democrats alluded to the problems this bill creates for doctors. Todd Prichard warned that since the bill includes an exemption for women who have abortions, courts will likely interpret the lack of a similar exemption for physicians as an "intentional omission." (beginning around 3:49:00) Republicans are introducing a "huge area of grayness in Iowa law as to what constitutes murder." The "extremely dangerous" ambiguity will affect doctors' willingness to practice medicine here. Lundgren had no good answer on the potential for doctors to be prosecuted for homicide. Responding to Meyer, she said the Iowa Board of Medicine would draft administrative rules to implement the law. But that board has no jurisdiction over decisions on criminal charges.
Mary Mascher and Vicki Lensing, who represent House districts in Iowa City, raised that post repeatedly during the floor debate. Mascher noted (starting around 3:54:40) that losing access to OB/GYN providers doesn't only harm people seeking an abortion. Anyone who needs obstetric and gynecological care would be affected. Newborns and premature babies could be at risk, because the University of Iowa will have more trouble recruiting and retaining highly qualified medical professionals for its neonatal intensive care unit.
Here's what Taylor told the Des Moines Register in March 2017, when House Republicans abandoned an effort to add heartbeat provisions to the 20-week abortion ban.
Rep. Rob Taylor, R-West Des Moines, said “a number” of House Republicans had reservations about the fetal heartbeat language after it was introduced.
“I think any time we have language that is realistic and doesn’t end up in court, I think that’s the opportunity to save more lives,” he said. “To run something through here just to end up in court isn’t necessarily the option that I would prefer, but I think that’s a discussion that we’ll have.”
Ending up in court is this bill's explicit goal, as lawmakers on both sides acknowledged during the House debate.
Like Heaton, Taylor is not seeking re-election in November. What would it have cost him to do the right thing?
UPDATE: A Bleeding Heartland reader has an audio recording of State Representative Bobby Kaufmann telling an audience at a West Branch legislative forum that he would vote against this bill. That makes five House Republicans who didn't live up to their apparent principles last night.
A CYNICAL GESTURE TO THE BASE
Nothing comes up for a vote in the Iowa House or Senate without the leaders' blessing. House Speaker Linda Upmeyer, Majority Leader Chris Hagenow, Senate Majority Leader Jack Whitver, and Senate President Charles Schneider all oppose abortion rights, but none has ever made that issue the focus of their legislative work. They haven't co-sponsored personhood bills or other extreme abortion bans. They haven't mentioned such bills among their top priorities.
Republicans have controlled the Iowa House since the 2011 legislative session. Yet before this year, legislation to outlaw abortion early in pregnancy did not clear a single House committee, let alone the full chamber.
Why did they rush through this poorly-conceived bill?
Besides securing the cooperation of some GOP senators on the budget, the six-week ban may deliver other political benefits. Many Iowa Republicans passionately believe all abortions should be illegal. In what could be a tough election cycle for the GOP, legislative leaders have just given that part of the base a reason to vote, donate, and volunteer. Iowa Democratic Party state chair Troy Price said in a written statement this morning,
“Last night, we saw Republican leadership at its worst. Rather than tackling the toughest issues facing our state, the GOP decided to pass a knowingly-unconstitutional bill in the dead of night that will do nothing but put the health care of Iowa women at risk.
“This bill is about serving the extreme, conservative interests that fill their campaign accounts, not about protecting Iowa children or Iowa women. It’s about a fundamental disrespect for our Constitution and women and doctors in our country. With this vote, Republicans have made our state more extreme than Mississippi or Kentucky."
Reynolds is officially not commenting on whether she will sign Senate File 359. But she and Upmeyer are close allies. If the governor didn't want the bill on her desk, it's unlikely the House speaker would have worked so hard to round up the votes. Anyway, no governor who has embraced the "pro-life" label would enrage social conservatives by vetoing this bill. If Iowa loses some OB/GYNs or young girls have to carry their rapist's child to term, so be it.
Senate Minority Leader Janet Petersen observed in February that even corpses and livestock in Iowa would have more health care rights than the six-week ban gives to girls and women. Though courts may prevent this law from being enforced, Iowans should not forget that every Republican senator and most of the House GOP caucus just voted for a cruel, unconstitutional bill. At least a few of them knew better.
UPDATE: The legislature sent this bill to the governor on May 2, giving Reynolds three calendar days to either sign or veto. If they had delayed sending the bill to her office until after the legislature adjourned for the year, the governor would have had 30 days to decide how to act.
Meanwhile, Attorney General Tom Miller told reporters on May 1 he wasn't sure whether his office would defend the new abortion ban in court, if the measure becomes law.
“If we feel that it’s, you know, very clearly unconstitutional, that’s something we do factor in,” Miller said.
He said his office defends state laws in the “vast majority of cases.”
“That’s our main role and responsibility, even if we don’t agree with the policy,” Miller said. “But here we’re looking at whether this would be one of the rare exceptions.”
The Attorney General's office defended the state's proposed ban on the use of telemedicine for abortion services (which the Supreme Court struck down in 2015) as well as the 72-hour waiting period Iowa lawmakers enacted last year. That case is pending before the high court.
Miller opted not to represent the state in the Varnum v Brien lawsuit challenging Iowa's Defense of Marriage Act, which banned same-sex marriages. The Polk County Attorney's office argued that case before the Iowa Supreme Court.
SECOND UPDATE: Reynolds confirmed plans to sign the bill on May 4. Steven Mazie, who closely follows the U.S. Supreme Court, considers it unlikely that this law will lead to Roe v Wade being overturned. From his piece for The Economist today:
With talk of Justice Anthony Kennedy, 81, who has been friendly to abortion rights, possibly leaving the bench this summer, conservatives are considering the possibility that a solid five-justice conservative majority could, if the right case reaches it, rethink or revoke Roe. But it would probably take at least one additional Donald Trump appointee to have a shot at erasing Roe from the law. John Roberts, the chief justice, is no fan of abortion and has voted to permit states to regulate it in significant ways. Still, his institutionalist bent and relative moderation suggest he would be loth to upend a right several generations of American women have come to rely on. On the other hand, Justice Clarence Thomas has written that Roe was wrongly decided; Justice Samuel Alito and Justice Neil Gorsuch seem solidly in that camp, too. So if Mr Trump has the opportunity to seat two more conservative justices, the risk of abortion rights disappearing is real.
But Ms Belin suggests that Planned Parenthood, an inevitable plaintiff that will challenge Iowa’s ban, may have a trick up its sleeve. As it has in other abortion litigation, Planned Parenthood may file suit in state court, not federal court. If the state court system agrees with Planned Parenthood and bases its defence of legal abortion on a right in the Iowa state constitution—perhaps the line that “all men and women” have “inalienable rights” including “obtaining safety and happiness”—the United States Supreme Court would have no authority to reconsider that. The justices have the final word only on the meaning of the federal constitution; states’ respective high courts are the final interpreter of their state laws and state constitutions.
The Iowa Catholic Conference, which normally supports abortion restrictions, expressed concern earlier this year that litigation over a "heartbeat" bill may produce an Iowa Supreme Court holding that the state constitution protects a woman's right to seek an abortion during the first trimester. The justices did not settle that question in their 2015 ruling on the telemedicine ban.
LATER UPDATE: Reynolds invited the media to watch her sign the bill surrounded by cheering religious conservatives and Christian school children.
“I believe that all innocent life is precious and sacred, and as governor, I pledged to do everything in my power to protect it. That is what I am doing today. I understand that not everyone will agree with this decision. But if death is determined when a heart stops beating, then doesn't a beating heart indicate life? For me, it is immoral to stop an innocent beating heart. For me, it is sickening to sell fetal body parts. For me, my faith leads me to protect every Iowan, no matter how small.
“I understand and anticipate that this will likely be challenged in court, and that courts may even put a hold on the law until it reaches the Supreme Court. However, this is bigger than just a law. This is about life. I am not going to back down from who I am or what I believe in.”
Mark Stringer, executive director of the American Civil Liberties Union of Iowa, said in a statement that the ACLU and Planned Parenthood "will sue to strike down this clearly unconstitutional law before it goes into effect on July 1."