Republicans found shortcut around Iowa Supreme Court on abortion

Spirits lifted in the pro-choice community when Iowa House Majority Leader Matt Windschitl did not call up a constitutional amendment on abortion shortly after the legislature reconvened this month.

Republican leaders wanted to pass the amendment, which had advanced from committee months earlier. When a high-profile bill doesn’t come to the floor, it often means the majority party doesn’t have the votes for final passage.

Indeed, at least three of the 53 House Republicans resisted immense pressure to vote for legislation designed to overturn an Iowa Supreme Court ruling protecting “the constitutional right of women to terminate a pregnancy.”

Unfortunately, the holdouts agreed to a last-minute abortion restriction that may provide a faster way to undo the high court’s work.

NO PROGRESS TOWARD CHANGING THE CONSTITUTION

Five Iowa Supreme Court justices held in June 2018 that a 72-hour waiting period for abortion violates the due process and equal protection clauses of the Iowa Constitution.

Outraged Republicans appeared to have momentum behind their push to add the following language to the state constitution:

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 in February, and a House committee advanced the measure the same week.

Some GOP legislators spun the language as taking a “neutral” stance toward abortion. In reality, the amendment would preclude Iowa courts from striking down any abortion restrictions based on guarantees in our state’s founding document. Since the U.S. Supreme Court is expected to eviscerate its Roe v Wade and Casey precedents before long, even the most extreme abortion bans would no longer be considered an “undue burden” for Iowans seeking to terminate pregnancies.

House Joint Resolution 2004 was on the House debate calendar for June 4 and 5. Democrats prepared for battle by filing half a dozen amendments. But the bill never came to the floor.

As the days passed, sources in both parties indicated House Republicans did not have 51 votes for the amendment among their 53 caucus members. Shane Vander Hart identified the three holdouts as Representatives Lee Hein, Dave Maxwell, and Louis Zumbach, which is consistent with information I received.

All three had opposed the 2018 bill that banned most abortions after around six weeks of pregnancy. A Polk County District Court struck that law down early last year, but similar legislation would be allowed if Iowans added the GOP’s desired language to the state constitution.

Zumbach is retiring from the legislature this year to run for Linn County supervisor, giving House leaders little leverage. I saw little chance of Maxwell flipping, since he was the only GOP lawmaker to vote against the 2017 bill that banned abortions after 20 weeks gestation and introduced the 72-hour waiting period later struck down by the Supreme Court.

From my vantage point, Hein looked like the weak link. As chair of the powerful Ways and Means Committee, he had something to lose if leadership became angry. On the other hand, he had deeply-held personal reasons for opposing stringent abortion regulations, related to his daughter’s experience with a difficult pregnancy.

Republicans needed to wrap up the 2020 legislative session this past weekend, because one or more House members would be unavailable beginning on June 15. The constitutional amendment never did come up for a vote.

Lawmakers intent on reversing the Iowa Supreme Court found another way.

UNRELATED BILL BECOMES “TROJAN HORSE”

Word spread on June 13 that Republicans had a backroom agreement to approve a 24-hour waiting period for all abortions. They needed a vehicle, though. Last week’s unprecedented police reform bill notwithstanding, you can’t start a bill from scratch and get it through both the House and Senate in a day.

The GOP dusted off House File 594, designed to set limits on taking a child off life support against the wishes of a parent. House members had approved the bill along party lines in March 2019. It cleared the Senate Judiciary Committee last April and had been sitting in “unfinished business” ever since.

To get the bill back to the lower chamber, floor manager Senator Jason Schultz proposed a trivial amendment to House File 594 on the afternoon of June 13. Senators approved the amended bill on a party-line vote of 32 to 17. Democratic State Senator Tony Bisignano observed many hours later, “We knew what the Trojan horse was that Senator Schultz rode in on today.”

Late Saturday evening, House leaders brought the measure to the floor, with a new amendment adding this language: “A physician performing an abortion shall obtain written certification from the pregnant woman of all of the following at least twenty-four hours prior to performing an abortion.”

All seven of the amendment’s co-sponsors were women: State Representatives Shannon Lundgren, Sandy Salmon, Linda Upmeyer, Ashley Hinson, Anne Osmundson, Jane Bloomingdale, and Holly Brink. (Ten Republican women now serve in the Iowa House.)

The group pushing the amendment included some of the legislature’s leading anti-abortion voices (Lundgren and Salmon) as well as those who had not co-sponsored some earlier attempts to restrict abortions (Upmeyer and Hinson, now the Republican nominee for Congress in Iowa’s first district). The most surprising name on the list was Bloomingdale, who had opposed the 2018 ban on terminating pregnancies after a fetal heartbeat could be detected.

REPUBLICANS SUSPEND RULES TO JAM BILL THROUGH

Lundgren offered her amendment late Saturday evening; you can watch the debate beginning around the 10:18:00 mark of this video. Reading from prepared remarks, she said, among other things:

Twenty-seven states have waiting periods before abortions, and Iowa has a three-day waiting period for a marriage license, 72-hour waiting period after a birth for an adoption, and a 90-day waiting period for divorce. Iowa already recognizes waiting periods in the code for a reasonable amount of time to consider a life-impacting decision. 24 hours is not an unreasonable amount of time to think about a decision that impacts more than just one life.

Co-sponsor Salmon expressed hope that “a woman would choose life over death” if forced to take more time to consider. (Multiple studies have shown waiting periods create delays and barriers but change few minds among those seeking an abortion.)

It’s bad enough to introduce far-reaching legislation late on a Saturday evening, less than 24 hours before the end of session, giving affected Iowans no opportunity to weigh in. Adding to the abuse of the legislative process, the waiting period had nothing to do with the original bill on life-sustaining medical procedures. House rules require amendments to apply to an Iowa Code section affected by the underlying bill. So Democratic State Representative Brian Meyer objected that the amendment to House File 594 was not germane.

House Speaker Pro-Tem John Wills was sitting in the speaker’s chair. Giving a veneer of fair play to a debate that made a mockery of transparency, he correctly ruled the amendment not germane to the bill. Then he repeatedly asked Lundgren if she had a motion to make.

After an awkward pause and some prompting from colleagues, Lundgren got the hint and moved to suspend the rules to allow consideration of her amendment. Republicans approved that motion along party lines: 52 to 43.

“THIS IS REAL FOR IOWA WOMEN”

Four House Democrats spoke passionately against the proposal: State Representatives Beth Wessel-Kroeschell, Karin Derry, Vicki Lensing, and Heather Matson. Here’s an excerpt from Matson’s remarks, highlighting the potential burdens on women.

What I and so many Iowans want the majority party to understand is that requiring a woman to wait 24 hours for a legal, medical, procedure–something this legislature has never required of any other medical procedure–is driven entirely by ideology that has nothing, absolutely nothing to do with medical science.

The intent of a 24-hour ban is the same as the 72-hour ban, passed a few years ago and found unconstitutional: make it harder for a woman to get the care she needs, and she just won’t get it.

Or perhaps it’s the notion that women need politicians to protect them from themselves. Because some of you may think that we haven’t put every measure of thought into such a decision.

I can’t tell you how many of my constituents have contacted me about not letting politicians interfere in their private and sometimes difficult health care decisions. Begging us to try and have some kind of understanding and empathy for what it’s like to be the one walking in these shoes.

Matson speculated that some lawmakers might not think a 24-hour delay is a big deal. So she ticked off the logistical and financial problems the policy would create for many Iowans.

Not having a car or reliable transportation and having to ask someone to take them to an appointment–not just once, but two days in a row.

Not having enough gas money–not just one, but two round trips somewhere.

Looking at their bank account and wondering how they’ll pay for that night in a hotel, or an extra few meals because a doctor’s appointment takes longer than necessary.

Getting back home to relieve the babysitter and worrying that they won’t be able to get child care for the next day.

These are real women’s and real Iowans’ concerns. And you need to think about them. Not just in a hypothetical, because this–is–real for Iowa women.

This peer-reviewed study from 2017 covers in more detail how barriers such as waiting periods affect people seeking to terminate a pregnancy.

“AN OPPORTUNITY FOR THE COURTS TO RECTIFY THE TERRIBLE SITUATION THAT THEY’VE CREATED”

Following the opponents’ speeches, Lundgren delivered final remarks in support of her amendment, where she got to the point of the exercise.

In closing, I’d like to address the case of Reynolds vs. Planned Parenthood [sic], where our Supreme Court created a constitutional right to an abortion here in our state. At no point has there ever been stated in our constitution that there is a right to an abortion. It’s never been approved by this legislative body. It’s never been approved by Iowans, who get to decide what our constitution looks like.

This extreme action by our courts creates a law that deeply affects the lives of Iowans and removes their voice from the discussion. We look forward to the day when Iowans have a seat at the table.

And maybe this will provide an opportunity for the courts to rectify the terrible situation that they’ve created here in our state.

All 52 Republicans present and Democrat Andy McKean voted for the waiting period amendment, and shortly thereafter for final passage of the bill. The other 42 Democrats in the chamber were opposed. McKean represents a heavily Catholic district in eastern Iowa and had supported the 72-hour waiting period as a member of the GOP caucus in 2017.

The amended House File 594 returned to the Senate, where it hit the floor at 4:22 am on June 14, following more than two hours of debate on controversial elements of a huge appropriations bill.

Near the beginning of his remarks (official video here), Schultz shuffled through papers and found the right one, from which he read the same talking points Lundgren had offered.

This language fits into Iowa Code, as we have a pattern of similar waiting periods in our code already. […]

Iowa has a three-day waiting period for marriage, 72-hour waiting period after birth for adoption, 90-day waiting period for divorce. All of these waiting periods are to ensure Iowans who are making lifelong decisions have time to reflect before these important decisions. Twenty-seven states have waiting periods currently, seventeen, I believe, of them are 24 hours. […]

Following some angry speeches on both sides, the Senate concurred with the House amendment after 5:30 am. Members then passed the bill on a party-line vote of 31 to 16.

AN AFFRONT TO A “CONSTITUTIONALLY PROTECTED MEDICAL PROCEDURE”

Once Governor Kim Reynolds signs House File 594 into law, reproductive rights advocates will have a difficult decision to make.

The ACLU of Iowa, which has represented Planned Parenthood in several recent cases (see here and here), declined comment to Bleeding Heartland on possible legal strategies.

A June 14 statement from Erin Davison-Rippey, Planned Parenthood’s leader in Iowa, harshly criticized the bill.

The measure creates an additional barrier to people who are seeking this constitutionally protected medical procedure by making them complete an additional and unnecessary clinic visit in advance of getting an abortion. […]

Iowa Republicans did not have the votes this session to change our state constitution and take away the right to abortion. So instead, in the dead of night and without any public input, these leaders spent the final hours of the 2020 legislative session pushing through a 24-hour waiting period for Iowans who are getting an abortion. They took this action even though legislators received thousands of phone calls and emails this session from constituents in support of sexual and reproductive freedom. […]

This law is really about shaming Iowans and making it harder to access abortion.

Channel 5 TV reported that Planned Parenthood is considering legal options, quoting Davison-Rippey as saying,

“Not only did [the supreme court] say the 72-hour wait period is unconstitutional, but it made clear that access to abortion is a fundamental right,” Iowa Executive Director for Planned Parenthood North Central States Erin Divison-Rippey said.

“[Abortion is] fundamentally covered in the Iowa constitution, just like free speech would be. That’s a very strong ruling, so we feel very fortunate that we do have that in place.”

Advocates have almost no choice but to sue. The alternative is acquiescing to limits on what five Supreme Court justices deemed a fundamental right.

The trouble is, litigation is exactly what this bill’s proponents want. They know the current Supreme Court is far more likely to reverse its 2018 opinion than to strike down the new statute.

“WAITING PERIODS ARE NOT UNCOMMON IN IOWA LAW”

Of the five justices who concurred in Planned Parenthood v. Reynolds, only one (Brent Appel) still serves on the Supreme Court. Justices Bruce Zager, Daryl Hecht, and David Wiggins all retired, and former Chief Justice Mark Cady, who authored the majority opinion, died in November 2019.

Reynolds appointed all of their successors. Her most recent appointee, Justice Matthew McDermott, defended a law the GOP legislature and governor enacted in 2017 and previously did extensive legal work for the Republican Party of Iowa.

Two other Reynolds picks are already on record stating that the high court doesn’t need to follow precedent. In December, University of Iowa constitutional law Professor Todd Pettys flagged a special concurrence by Justice Christopher McDonald, joined by Justice Susan Christensen (who now serves as chief justice). That opinion in a juvenile sentencing case reads in part,

In my opinion, Lyle and Roby were wrongly decided and should be reconsidered.

Stare decisis does not compel continued adherence to Lyle and Roby. Stare decisis has limited application in constitutional matters.

The two dissenters from the 2018 abortion decision, Justices Edward Mansfield and Thomas Waterman, still serve on the Supreme Court. And when I re-read Mansfield’s dissenting opinion while working on this post, one passage jumped out at me.

Waiting periods are not uncommon in Iowa law. We have a three-day waiting period for marriage. See Iowa Code § 595.4 (2018). There is a 72-hour waiting period after birth for adoption. See id. § 600A.4(2)(g). There is a ninety-day waiting period for divorce. See id. § 598.19. All of these waiting periods implicate fundamental constitutional interests in marriage and parenting. The legislature mandated waiting periods to ensure these important life decisions were made after time for reflection. No one can reasonably question the legislature’s power to impose these waiting periods before Iowans begin or end a marriage or give up a newborn baby for adoption. So why can’t the legislature impose a waiting period before an abortion?

A clear majority of courts since Casey have upheld abortion waiting periods under both state and federal constitutions.

No wonder Representative Lundgren and Senator Schultz read from prepared texts while presenting their last-minute amendment. They (or more likely, the attorney who drafted the statement for them) wanted to echo Justice Mansfield’s own arguments for upholding a waiting period.

IS THE GOP’S CONSOLATION PRIZE BETTER THAN THE ORIGINAL GOAL?

When I heard Republicans had agreed to pass a waiting period, my first thought was that it was a less-bad outcome than the legislature advancing a constitutional amendment written to make all future abortion restrictions immune to court challenge.

Now I’m inclined to believe the opposite.

Changing the Iowa Constitution is a long process. Two separately elected legislatures must approve identical language, after which a majority of voters must approve the amendment on a statewide ballot.

In other words, if the House had passed the abortion amendment this year, both chambers of the legislature would have needed to approve it again in 2021 or 2022 before it could come before voters. Democrats have a realistic chance to win back the lower chamber this November, which would bury any new abortion restrictions.

Even with a continuing GOP trifecta, the abortion amendment would be no sure thing. Iowans would have a chance to vote on the language in 2022. A statewide poll by Selzer & Co for the Des Moines Register in March indicated that 54 percent of Iowans “oppose the change to specify that the Iowa Constitution does not recognize a right to abortion or require public funding of it.” Just 33 percent of respondents supported the idea.

Don’t get me wrong: I would prefer not to roll the dice on a ballot initiative in a midterm election. For all we know, a Joe Biden presidency could fuel complacency among Democrats and big victories for the party out of power in 2022.

My point is that state House approval of a constitutional amendment on abortion in 2020 would not immediately put the Planned Parenthood v. Reynolds precedent at risk. Iowans would have later opportunities to stop the proposal.

In contrast, the 24-hour waiting period will immediately infringe on reproductive rights and set in motion a chain of events likely culminating in a less favorable Supreme Court decision. Only a little more than a year passed between Governor Terry Branstad signing the 72-hour waiting period and the high court striking it down. A case filed in the coming weeks could reach the justices in 2021, whereas the earliest a constitutional amendment could have been adopted was November 2022.

Top image: Screen shot of State Representative Shannon Lundgren presenting the 24-hour waiting period amendment in the Iowa House on June 13.

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