Top Iowa Republicans reacted quickly on June 16 after the Iowa Supreme Court’s split decision kept abortion legal in Iowa up to 20 weeks.

In a joint news release, Governor Kim Reynolds, Senate Majority Leader Jack Whitver, and House Speaker Pat Grassley promised to work together on what they called “pro-life policies to protect the unborn.” But they did not indicate whether a new law might differ from the near-total abortion ban passed in 2018, which remains permanently enjoined after the Supreme Court deadlock.

The statements also did not clarify whether Republicans plan to convene a special legislative session before lawmakers are scheduled to return to Des Moines next January. Communications staff working for the governor and House and Senate leaders did not respond to Bleeding Heartland’s questions.

Any new abortion ban would be challenged immediately, and two years might pass before the Iowa Supreme Court rules on whether that law violates the state constitution. So anti-abortion advocates will want the legislature and governor to start the process sooner rather than later.

But even with the large House and Senate majorities Iowa Republicans now enjoy, it may not be easy to draft a bill that can get through both chambers.

THE FINE PRINT MATTERS MORE NOW

The Iowa legislature did not consider any abortion restrictions during the 2023 session, while leaders awaited the Iowa Supreme Court’s ruling on the effort to reinstate what proponents call the “heartbeat” bill. That 2018 law would ban almost all abortions after fetal cardiac activity (not technically a heartbeat) could be detected, which usually occurs around six weeks after the last menstrual period.

Republicans hastily drafted a long amendment to pull the bill over the line in the Iowa House during the closing days of the 2018 session. As Bleeding Heartland discussed in more detail here, the law’s few exceptions for medical emergencies or “medically necessary” terminations would not cover many situations where continuing a pregnancy could endanger someone’s health, or a person became pregnant due to rape or incest. And of course, the vast majority of pregnant Iowans would have no ability to make their own medical decisions, because by the time they became aware of a pregnancy, it would be too late to terminate.

When the legislature debated this bill in 2018, its proponents knew it was unconstitutional under longstanding precedent, and characterized the bill as a vehicle for overturning Roe v Wade. So they didn’t sweat the details.

Since the U.S. Supreme Court tossed its Roe and Casey precedents in last year’s Dobbs decision, more than a dozen states have banned abortion in nearly all cases. Now we regularly hear horror stories from those states. Patients have been forced to continue pregnancies—sometimes for months—despite fetal anomalies incompatible with life. Patients have been denied care following a miscarriage, some left bleeding for more than a week, some nearly dying of infection or hemorrhage.

Doctors are leaving some states to avoid the risk of criminal prosecution “simply for saving someone’s life.” Iowa is already one of the worst states for access to OB/GYNs, and severe restrictions on abortion would likely worsen the problem.

SOME HOUSE REPUBLICANS MAY PREFER BROADER EXCEPTIONS

Republicans now hold 34 of the 50 Iowa Senate seats and 64 of the 100 Iowa House seats. Getting an abortion ban through the Senate should not be challenging. For whatever reason, Republicans in that chamber rarely dissent from what leadership wants. No GOP senator voted against the 2018 abortion ban. In addition, 29 current state senators signed on to one of the two amicus briefs lawmakers submitted to the Iowa Supreme Court this year supporting the effort to lift the injunction (see here and here).

The House GOP caucus is more fractious. Republican holdouts kept several of the governor’s priorities from advancing in 2021 and 2022. Even though the chamber did approve almost everything Reynolds asked for during this year’s session, House leadership had to work much harder to marshal support for some of those proposals. Bills limiting liability for trucking companies and relaxing child labor regulations were substantially modified before final passage. Other high-profile bills cleared the House with a surprising number of GOP “no” votes; nine Republicans opposed the governor’s school voucher plan, and twelve opposed limits for medical malpractice awards.

With many GOP-led states now banning abortion at six weeks or earlier, it’s hard to imagine Reynolds agreeing to anything less strict than the 2018 law.

No Democrats will vote for new abortion restrictions, which means House leaders can afford to lose at most thirteen GOP members.

State Representative Jane Bloomingdale voted against the 2018 bill and against the proposed state constitutional amendment that would open the door to a total abortion ban. So she will likely oppose any severe restrictions on reproductive rights.

Who else might hesitate to support a ban with few meaningful exceptions? It’s hard to guess. The Iowa Supreme Court opinion authored by Justice Thomas Waterman, which explained why he and two other justices opposed lifting the injunction on the 2018 law, noted that fifteen House Republicans did not sign on to an amicus brief urging the court to allow the abortion ban to go into effect.

To be clear, legislators may choose not to join an amicus brief submitted by The FAMiLY Leader for any number of reasons. That does not prove they wouldn’t vote for a new six-week ban. Maybe they didn’t want to be linked to that organization. Maybe they preferred different legal arguments for lifting the injunction.

Then again, maybe some would favor broader exceptions than those outlined in the 2018 law. With that caveat, here is the list of House Republicans who didn’t join that amicus brief:

• Michael Bergan
• Jane Bloomingdale
• Jacob Bossman
• Tom Determann
• Chad Ingels
• Megan Jones
• Bobby Kaufmann
• Barb Kniff McCulla
• Brian Lohse
• Ann Meyer
• Gary Mohr
• Matthew Rinker
• David Sieck
• Mike Vondran
• Hans Wilz

SOME HOUSE REPUBLICANS MAY INSIST ON FEWER EXCEPTIONS

The 2018 bill included limited exceptions for rape, incest, and certain medical emergencies. They were drafted narrowly; for instance, rape or incest victims who had never reported the assault would be ineligible for an abortion. As weak as those exceptions were, they may be a bridge too far for a faction in the Iowa House.

Twenty House Republicans introduced a bill this year that would go further than the 2018 ban. House File 510 would declare, “The state of Iowa has a fundamental and compelling interest in protecting the life of every human being from the moment of fertilization.” It would ban all “elective abortion” and any actions to assist someone in getting an abortion. Its enforcement mechanism was modeled on a Texas law that empowered private citizens to file lawsuits. It contained no rape or incest exceptions and only narrow exceptions for medical emergencies, ectopic pregnancies, and miscarriage care.

House Judiciary Committee chair Steven Holt never assigned the bill to a subcommittee. He told the Des Moines Register in February,

“I believe absolutely 100% in life at conception,” Holt said. “But there are a number of us, and legal experts, who believe we need to wait and see what the Supreme Court decision is on the heartbeat bill.”

The ball’s back in the legislature’s court now. Even if the Texas approach does not represent a consensus view among Iowa House Republicans, 20 co-sponsors is a sizable group—larger than the number who co-sponsored various personhood bills Iowa House members introduced during the 2010s.

I’m not saying every lawmaker who co-sponsored House File 510 would refuse to vote for a less severe abortion ban. But some in this group might balk at exceptions favored by the majority of the GOP caucus.

With that in mind, here’s the list of lawmakers who signed onto a bill that wouldn’t even allow abortion up to six weeks and had no rape or incest exception:

• Steven Bradley
• Ken Carlson
• Zach Dieken
• Jon Dunwell
• Dean Fisher
• Thomas Gerhold
• Martin Graber
• Stan Gustafson
• Helena Hayes
• Robert Henderson
• Tom Jeneary
• Craig Johnson
• Anne Osmundson
• Brad Sherman
• Jeff Shipley
• Luana Stoltenberg
• Mark Thompson
• Phil Thompson
• Charley Thomson
• Skyler Wheeler

CONSTITUTIONAL AMENDMENT MAY BECOME BARGAINING CHIP

In 2021, Iowa House and Senate Republicans took the first step toward amending the state constitution to declare there is no right to an abortion. Both chambers would need to approve identical language again to get the proposal on a statewide ballot. Then, if a majority of Iowa voters approve, the following section would be added to the constitution.

Sec. 26. Life. To defend the dignity of all human life and protect unborn children from efforts to expand abortion even to the point of birth, we the people of the State of Iowa declare that this Constitution does not recognize, grant, or secure a right to abortion or require the public funding of abortion.

The obvious purpose of the amendment was to allow the GOP-controlled legislature to ban abortion. But Republicans drafted the proposal to create the illusion that the goal was to “protect unborn children from efforts to expand abortion even to the point of birth,” and prevent public funds from paying for abortions. Polling commissioned by The FAMiLY Leader informed the wording.

When the legislature began working on this amendment, the Iowa Supreme Court had not yet overturned its 2018 precedent declaring abortion to be a fundamental right protected under the state constitution. But a conservative majority ditched that precedent last year, raising questions about whether the amendment was needed.

The Iowa Supreme Court opinions published on June 16 made clear that Justice Waterman, Justice Edward Mansfield, and Chief Justice Susan Christensen lean toward evaluating abortion regulations using an “undue burden” standard. As Waterman’s opinion explained, “The undue burden test balances the state’s interest in protecting unborn life and maternal health with a woman’s limited liberty interest in deciding whether to terminate an unwanted pregnancy.”

Nothing resembling a six-week ban could be upheld under that standard. Anti-abortion advocates need the Iowa Supreme Court to use the “rational basis” standard, which considers only whether the state has some legitimate reason to restrict abortion. The bodily autonomy of pregnant Iowans would count for nothing.

The opinions published this week confirm Justices Christopher McDonald, Matthew McDermott, and David May favor using rational basis review, which would allow any abortion ban to be upheld.

Iowa Supreme Court justice Dana Oxley recused herself from this case, so we don’t know how she would approach this question. In the 2022 abortion case, Oxley joined the plurality opinion that left the undue burden standard in place while the court considered other options, rather than the concurring opinion that would have established a rational basis standard immediately.

In this context, anti-abortion advocates have valid reasons to keep pushing for the constitutional amendment. If voters approve it, the Iowa Supreme Court would presumably acknowledge in future cases that there is no state constitutional right to terminate a pregnancy under any circumstances.

Influential groups including The FAMiLY Leader and Iowa Right to Life will be lobbying Republican lawmakers to advance the amendment a second time, putting the measure on a statewide ballot. Some House Republicans may demand a vote on the constitutional amendment as a condition of voting for an abortion bill that doesn’t go as far in banning the practice as they would like.

LEADERS MAY NOT WANT TO LET IOWANS VOTE ON ABORTION

But trying to amend the constitution would be risky. The most recent Iowa Poll by Selzer & Co for the Des Moines Register and Mediacom, taken in March 2023, indicated that 61 percent of Iowa adults believe abortion should be mostly or always legal. A Selzer poll from 2021 found that only 31 percent of Iowa adults supported amending the state constitution “to say it does not recognize a right to abortion or require public funding of abortion.”

Similar proposals have failed in the post-Dobbs world. In the 2022 general election, Kentucky voters rejected a constitutional amendment with wording much like Iowa’s by 52.3 percent to 47.7 percent.

What if Iowa Republicans schedule a referendum on an abortion amendment at some other time in 2024, to avoid a high-turnout November election? Their counterparts in Kansas tried that tactic last year. But even though the wording was confusing, and the vote was held during the first week of August, the proposed amendment went down in a landslide: 59.0 percent to 41.0 percent.

Worth noting: Iowa’s partisan voting index is R+6, meaning this state’s electorate voted about 6 points more Republican than the country as a whole in the 2016 and 2020 presidential elections. Kansas and Kentucky are much more GOP-leaning, with PVIs of R+10 and R+16, respectively.

A decisive popular vote against the GOP-backed amendment would show the Iowa Supreme Court that the majority of Iowans believe our state’s constitution protects bodily autonomy to some degree. That might tip the scales toward a balancing test like the undue burden standard, even though the U.S. Supreme Court majority rejected the undue burden standard in Dobbs.

I suspect Reynolds and legislative leaders will not want to roll the dice on putting a constitutional amendment directly before Iowa voters. Lots of people who generally support Republican candidates also think the government shouldn’t interfere in personal medical decisions. In a normal election, they aren’t single-issue voters on abortion; Selzer’s Iowa Poll from October 2022 found, “Among Iowans who plan to vote for Reynolds, 33% say most or all abortions should be legal.”

Last year’s results from Kansas and Kentucky suggest that given a chance to vote up or down on reproductive rights, such voters would reject a ballot measure like Iowa’s proposal.

The FAMiLY Leader’s staff told me in 2021, “Iowans overwhelmingly do NOT support the taxpayer-funded abortion or expansion of abortion to the point of a baby’s birth that the 2018 [Iowa Supreme Court] decision paves the way for.” But even before our state’s high court overturned that ruling, Iowa was not on the cusp of expanding abortion “to the point of a baby’s birth.” Third-trimester abortions have been illegal here for decades.

In the post-Dobbs world, anyone paying attention can see that Republicans ban abortion in every state they control. It would be harder to trick Iowans into believing the amendment would make the constitution “neutral” on abortion.

If Whitver and Grassley can lock down enough votes for a new abortion ban without putting a constitutional amendment on a statewide ballot, I suspect they will take that route, and Reynolds will call a special session in the coming months. If negotiations get bogged down between the House and Senate, or within the House caucus, the legislature may not act on this issue before January 2024.

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Appendix: June 16 news release: “Gov. Reynolds, Republican Leadership Respond to Iowa Supreme Court’s Opinion on Fetal Heartbeat Bill Injunction”

DES MOINES – Today, the Iowa Supreme Court failed to exercise its authority to review the Fetal Heartbeat case, leaving the injunction in place. Governor Reynolds, Senate Majority Leader Whitver, and Speaker of the House Grassley issued the following statements. 

Governor Kim Reynolds:  

“To say that today’s lack of action by the Iowa Supreme Court is a disappointment is an understatement. Not only does it disregard Iowa voters who elected representatives willing to stand up for the rights of unborn children, but it has sided with a single judge in a single county who struck down Iowa’s legislation based on principles that now have been flat-out rejected by the U.S. Supreme Court. There is no fundamental right to abortion and any law restricting it should be reviewed on a rational basis standard – a fact acknowledged today by three of the justices.  Still, without an affirmative decision, there is no justice for the unborn. 

“But the fight is not over. There is no right more sacred than life, and nothing more worthy of our strongest defense than the innocent unborn. We are reviewing our options in preparation for continuing the fight.” 

Senate Majority Leader Jack Whitver:  

“I disagree with the Supreme Court’s opinion today. Their decision a year ago, correctly overturning the 2018 decision, should reasonably be considered a substantial change in the law and the injunction should have been lifted. Senate Republicans have a consistent record of defending life, including the passage of the Heartbeat Bill. We will work with Governor Reynolds and the House to advance pro-life policies to protect the unborn.” 

Speaker of the House Pat Grassley: 

“I’m extremely disappointed in the Supreme Court’s opinion today. We feel strongly that the Heartbeat Bill is a good piece of legislation that would save the innocent lives of unborn children. Going forward we will work together to pass legislation that will protect life, support new mothers, and promote strong families in Iowa.” 

Top photo: Chuck Hurley of The FAMiLY Leader and Governor Kim Reynolds participate in the Rally for Life at the state capitol on February 6, 2023. Photo first published on the governor’s official Twitter feed.