Kim Reynolds, acting in her official capacity as governor of Iowa, has requested the United States Supreme Court, asking the justices to overturn half a century of legal precedence and rule that the U.S. Constitution does not protect the right to choose an abortion.
Reynolds was one of 11 Republican governors who signed an amicus brief in an abortion rights case out of Mississippi, Dobbs v. Jackson Women’s Health Organization.
In 2018, Mississippi passed a ban on abortions after a pregnancy reaches 15 weeks. The Supreme Court’s 1973 decision in Roe v. Wade not only recognized a person’s right to choose an abortion, it established that a state cannot prevent someone from accessing abortion services prior to a fetus becoming viable, which has been recognized as being at least 24 weeks into a pregnancy. In its 1992 Planned Parenthood v. Casey decision affirming Roe, the high court ruled that states also cannot place an “undue burden” on someone seeking abortion services during that period.
“In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and reaffirmed) a woman’s right to choose an abortion before viability,” Judge Patrick E. Higginbotham of U.S. Court of Appeals for the 5th Circuit wrote in his opinion striking down the Mississippi law as unconstitutional.
The 5th Circuit is the most conservative federal appeals court in the country, and has ruled in favor of conservative interests in many legal challenges that were generally considered extreme, but it had no problem deciding the Mississippi law violated the constitutional rights of Mississippians.
The Supreme Court’s decision in May to hear the Mississippi attorney general’s appeal of the 5th Circuit’s ruling caused considerable concern among pro-choice advocates. There was no obvious legal reason for the court to hear the appeal — the 5th Circuit decision is based on decades of precedent and no appeals court in any other circuit has issued a ruling that conflicts with it. Given the court’s make-up, especially after the confirmation of Justice Amy Coney Barrett in October, it seems very unlikely the justices would agree to hear the case simply to reaffirm existing constitutional principles. Instead, as soon as the court accepted the appeal, it was widely speculated the conservative majority would use the case to undermine long-established abortion rights.
But even that possibility wasn’t enough for the state of Mississippi. Although the Supreme Court only asked for briefs addressing the question of “whether all pre-viability prohibitions on elective abortions are unconstitutional,” Mississippi went further, and in the first section of the brief it filed on July 22, called on the justices to overturn Roe, Casey and all related decisions, and declare there is no constitutional protection for abortion.
“Roe and Casey are unprincipled decisions that have damaged the democratic process, poisoned our national discourse, plagued the law — and, in doing so, harmed this Court,” according to Mississippi’s brief. The state also asserts, “Nothing in constitutional text, structure, history, or tradition supports a right to abortion.”
It is this extreme position that Reynolds and the other 10 Republican governors support in the amicus brief they filed with the Supreme Court on Thursday. The brief also argues that the past five decades of Supreme Court decisions establishing a right to an abortion have been an intolerable violation of state’s rights.
“The judicial constitutionalization of abortion represents an unwarranted intrusion into the sovereign sphere of the States,” the brief states. “Returning to the States the plenary authority to regulate abortion without federal interference would restore the proper (i.e., constitutional) relationship between the States and the Federal Government.”
Respect for states’ rights has been a traditional argument since the Reconstruction Period following the Civil War used by people seeking to block the establishment or enforcement of the rights of both people of color and women.
Reynolds echoed the states’ rights theme in a written statement her office issued late Thursday afternoon.
“For years, democratically elected representatives in states like Iowa have tried to defend innocent human life only to be stymied by the Supreme Court’s decision in Roe v. Wade,” Reynolds said. “For too long, this precedent has trampled on state sovereignty and destroyed the lives of millions of unborn babies. I am proud to join with governors from across the country to take a stand for life and democratic self-government.”
It’s notable that despite the dominance of anti-abortion political posturing in the Republican Party since the 1980s, fewer than half the country’s 27 Republican governors were willing to sign the brief that Reynolds did. Conspicuously absent are a few hard-right governors believed to have 2024 presidential ambitions, such as Kristi Noem of South Dakota and Pete Ricketts of Nebraska.
The brief also goes much further than one filed by 228 Republican members of Congress on Thursday. That amicus brief just argues the justices should uphold the Mississippi law and find that not all pre-viability bans on abortion are unconstitutional. That would still significantly undermine currently recognized rights, but would not necessarily eliminate all constitutional protections for the right to choose an abortion. Both Sen. Chuck Grassley and Sen. Joni Ernst signed the brief.
Even if the Supreme Court were to overturn Roe in its coming session, that would not eliminate protection for the right to an abortion in Iowa. In its 2018 decision striking down a 72-hour waiting period for abortions signed into law by Gov. Terry Branstad, the Iowa Supreme Court ruled that the Iowa Constitution provides stronger protection for a woman’s right to make reproductive choices than the U.S. Constitution does. But the make-up of the Iowa Supreme Court has changed dramatically since that decision, and Reynolds has now appointed four of the seven serving justices.
The governor has bragged that she’s “moved the needle from left to right” on the court.
There is also the ongoing attempt to eliminate any protection offered by the Iowa Constitution by adding an anti-abortion amendment to it. Although an Iowa Poll conducted this year showed a majority of Iowans disapprove of such an amendment, Republican lawmakers in the Iowa House and Senate pushed it through during the last legislative session. It would need to pass both chambers again in the session beginning in 2023 and then be approved by a simple majority of voters before it would be added to the state constitution.
Reynolds has called adding the anti-abortion to the Iowa Constitution a top priority.
Jackson Women’s Health Organization, which challenged the pre-viability ban in the case before the U.S. Supreme Court, is the sole provider of abortion services in the state of Mississippi. Other clinics were harassed into closing, and hospitals either willingly refuse to offer such services or have been coerced into refusing. In recent years, the clinic has survived attempts by the state of Mississippi to create laws specifically designed to shut it down — those laws that have been struck down as unconstitutional. In the current case, the clinic is being represented by the Center for Reproductive Rights.
“If Roe falls, half the states in the country are poised to ban abortion entirely,” Nancy Northup, president and CEO of the center said in a statement after Mississippi filed its brief. “Women of child-bearing age in the U.S. have never known a world in which they don’t have this basic right, and we will keep fighting to make sure they never will.”
What Northrup finds ominous, Reynolds finds “exciting.”
Speaking at the annual meeting of a rightwing Christian group in Des Moines on July 16, the governor said, “There hasn’t been a more exciting time to fight [against reproductive rights] in decades as the United States Supreme Court prepares to consider the Mississippi statute protecting the unborn, beyond 15 weeks.”
At a pro-choice rally on the University of Iowa Pentacrest in May 2019, organized amid a wave of anti-abortion legislation advancing across the country, Francine Thompson, executive director of the Emma Goldman Clinic, delivered a speech addressing the widespread fear that one of these bills would wind up in front of a conservative SCOTUS, and Roe v. Wade would be overturned.
This fear is valid, Thompson said, but it’s important to acknowledge that abortion access has already been stifled or is under threat in much of the country.
People are already having to travel to other states where abortion is more accessible. They’re having to leave the comfort of their communities and local and trusted regional clinics, even if Roe is never overturned. They need transportation and housing often offered by strangers — friendly and supportive, but strangers nonetheless — even if Roe is never overturned. They’re putting their health and their lives in the hands of healthcare clinics and providers that they’re unfamiliar with. They’re taking the chance that if they present at the emergency room with heavy bleeding, that they won’t be charged for fetal homicide, even if Roe is never overturned. And they’re continuing pregnancies that they don’t want to because they can’t afford an abortion or navigate the challenges of getting one, or they’re taking matters into their own hands with self-induced and self-managed abortions, and these things are already happening, even if Roe is never overturned.
You know what that sounds like to me? It sounds like pre-Roe to me, even if Roe is never overturned.