On Wednesday afternoon, Gov. Kim Reynolds issued a proclamation calling the Iowa Legislature into a special session that starts at 8:30 a.m. on Tuesday for “the sole and single purpose” of passing what would be one of the country’s strictest bans on abortion.
“I believe the pro-life movement is the most important human rights cause of our time,” Reynolds said in a written statement announcing the special session.
According to the proclamation, the governor is convening the special session because of her failure to persuade a majority on the Iowa Supreme Court to take the unprecedented step of dissolving a four-year-old permanent injunction that stopped the 2018 abortion ban she signed into law from going into effect.
That bill would have banned almost all abortions in Iowa after an ultrasound can detect any cardiac activity in an embryo. That typically occurs around six weeks into pregnancy, before many people realize they are pregnant.
The governor and other proponents of the bill called it a “fetal heartbeat” law, but that’s an advertising slogan, not a medically accurate description. What the ultrasound is detecting is a “fluttering” that is the earliest indication of cardiac activity. But at six weeks, there is no heartbeat because the heart hasn’t formed yet. And medically speaking, an embryo isn’t considered a fetus until 11 weeks.
The bill did contain exemptions for cases in which the pregnancy resulted from rape or incest. A rape victim must report the rape “to a law enforcement agency, a public or private health agency or a family physician within 45 days.” A victim of incest must report the sexual abuse to at least one of the same set of authorities within 140 days.
A preliminary injunction issued by a state district court judge stopped the law from being enforced in 2018. The following January, that injunction was made permanent. The governor chose not to appeal the judge’s order.
“[S]he knows it’s unconstitutional,” Mary Wolfe, a Democrat who represented Clinton in the Iowa Senate, tweeted after Reynolds signed the ban into law while surrounded by small children in a photo-op signing ceremony.
Reynolds signs #FetalHeartbeat bill as chants of “My body my choice” echo from outside the office. @KCCINews @CBSNews pic.twitter.com/F2Mq5bCPUR
— Chris Gothner (@Chris_Gothner) May 4, 2018
At the time, the bill was clearly unconstitutional. But in June 2022, the Republican-appointed majority on the U.S. Supreme Court overturned the 1973 Roe v. Wade decision, “[r]escinding an individual right in its entirety and conferring it on the State” for the first time in American history, as Justice Elena Kagan noted in her dissenting opinion.
“As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions,” Kagan wrote.
The injunction against the six-week ban, however, wasn’t just based on the protection then afforded by the U.S. Constitution, but primarily on the protection afforded by the Iowa Constitution, and a 2018 Iowa Supreme Court decision that abortion was a fundamental right in Iowa.
“Autonomy and dominion over one’s body go to the very heart of what it means to be free,” then-Chief Justice Mark Cady wrote in that 2018 decision. “At stake in this case is the right to shape, for oneself, without unwarranted governmental intrusion, one’s own identity, destiny, and place in the world. Nothing could be more fundamental to the notion of liberty.”
All laws restricting abortion, therefore, had to be subjected to the highest level of judicial review, strict scrutiny. Strict scrutiny requires a law or regulation be “narrowly tailored” to achieve a “compelling state interest.” Few laws pass this test, which is why it is reserved for those impacting fundamental rights.
But last year, one week before the U.S. Supreme Court overturned Roe, the Iowa Supreme Court, now without some of the justices from 2018 (including Cady, who died unexpectedly in November 2019), overturned that earlier decision in a case known as Planned Parenthood of the Heartland IV (PPH IV), in which the majority declared there is no “fundamental right to an abortion in Iowa’s Constitution.”
That decision did not change the fact that abortion up to 20 weeks remains legal in Iowa, but the majority did uphold a medically unnecessary 24-hour waiting period before an abortion, directing courts to use an intermediate standard of review — the undue burden test — for abortion restrictions.
A six-week abortion ban could not pass the undue burden test, but the governor is hoping the Iowa Supreme Court will eventually decide abortion restriction only needs to pass the lowest level of judicial scrutiny, a rational basis review. Almost any law can pass that standard. In his opinion for the fragmented majority in PPH IV, Justice Edward Mansfield suggested the court might adopt the rational basis standard of review for abortion in the future.
Following the actions by the two supreme courts last June, Reynolds announced she would pursue her strategy of trying to get the courts to dissolve the 2019 permanent injunction. The governor’s approach may not have had legal merit, but as a political ploy, it was highly successful. It allowed her and other Republicans to evade questions about post-Roe abortion bans during last year’s election by saying they were waiting for the Iowa Supreme Court’s ruling. Polling consistently shows a majority of Iowans support access to abortion.
Until now, it was always possible for Republicans in the Iowa Legislature to vote for severe restrictions on abortion, knowing the courts would strike them down. In effect, those votes were a cost-free way to satisfy the most conservative parts of their base. That will be different once the special session starts on Tuesday, when the only subject under consideration will be a new version of the 2018 six-week abortion ban.
“Iowans have made themselves clear that they are not in favor of extreme positions concerning abortion, and I am committed to making sure Iowans have the final word,” Iowa Democratic Party Chair Rita Hart said in a written statement on Wednesday after the governor issue her proclamation. “Success or failure won’t be determined when Republican politicians come together at the state house next week and vote to restrict access to abortion. Abortion bans are wildly unpopular among Iowa voters, and those voters will have a chance to remind their legislators who they work for at the ballot box in 2024 and 2026.”
But in an op-ed published last week, Art Cullen, the Pulitzer Prize-winning editor of the Storm Lake Times, cautioned that even if Republicans ban almost all abortions in Iowa, that doesn’t mean the party will suffer big losses in next year’s election.
“Abortion will be a leading issue in 2024 Statehouse races, but not around here [in western Iowa],” Cullen wrote. “The battle will take place around Cedar Rapids, Des Moines, Davenport and Waterloo. It will take more than abortion — gay bashing, book banning, cuts to K-12 schools, increasing tuition at public universities — for Republicans to lose their undisturbed grip on power in Iowa.”
“Abortion remains the glue that holds the GOP base together, while at odds with general public sentiment. It is the soft political underbelly, but abortion is not alone the issue that can turn Iowa politics away from a hard-right lurch.”
