John Kearney is a retired philosophy professor who taught at Saint Joseph’s University in Philadelphia, Pennsylvania. He has lived in Waterloo, Iowa for the past six years.
U. S. Supreme Court Justice Samuel Alito, writing for the conservative majority in the landmark 2022 Dobbs case (which overturned the Roe v. Wade precedent), concluded his opinion by saying:
“In my judgment, on the issue of abortion, the Constitution is nether pro-life nor pro-choice. The Constitution is neutral, and this Court must be scrupulously neutral. The Court today properly heeds the constitutional principle of judicial neutrality and returns the issue of abortion to the people and their elected representatives in the democratic process.”
The legal controversy over Iowa’s near-total abortion ban (House File 732) focuses on whether a “rational basis” or an “undue burden” review of abortion regulations should hold sway. (The Iowa Supreme Court will soon rule on the state’s appeal of a lower court injunction that has blocked the law’s enforcement.)
The state of Iowa favors the “rational basis” standard, according to which a law is constitutional if there is a “rational relationship” between the provisions of the law and a legitimate state interest. The state interest in House File 732 is the protection of unborn life.
In a 2013 article for the Harvard Civil Rights-Civil Liberties Law Review (“Giving Casey Its Bite Back”), Emma Freeman noted that “because it is the most deferential standard of constitutional scrutiny, rational basis has traditionally functioned as a rubber stamp for legislation. Typically, courts uphold legislation if any conceivable circumstance exists to justify it…”
In a press release issued a few days after the Dobbs decision in June 2022, Governor Kim Reynolds stated, “As governor, I will do whatever it takes to defend the most important freedom there is: the right to life.” And when Republican legislators approved a new abortion ban in July 2023, Iowa Senate President Amy Sinclair declared, “the right to life is the one that is enshrined in the state Constitution and should be safeguarded above all other rights to the highest level.”
I do not pretend to be a legal scholar. But it strikes me that the words of the Iowa Constitution are fairly clear. I do not find support in our state’s founding document for the Reynolds-Sinclair claim about the supremacy of the right to life. Article 1, Section 1 simply states: “All men and women are, by nature, free and equal, and have certain inalienable rights – among which are those of enjoying and defending life and liberty, acquiring, possessing property, and pursuing and obtaining safety and happiness.” The Iowa Constitution does not prioritize the right to life over the right to liberty.
In any event, a clear majority in the Iowa legislature have determined that the state’s interest in protecting unborn life is more important than a woman’s right to make a free choice about how to handle an unwanted pregnancy. The majority agrees with Justice Alito that it is time to return the issue of abortion “to the people and their elected representatives.”
But are “the people” and their “elected representatives” of one mind on the abortion issue? Major polls say they are not. In particular, the March 2023 Iowa Poll by Selzer & Co for the Des Moines Register and Mediacom poll indicated that 61 percent of Iowans and 70 percent of Iowa women believe abortion should be legal in all or most cases.
At the recent “March for Life” rally at the Iowa capitol, Iowa Attorney General Bird told the crowd of anti-abortion activists, “Keep praying, because we expect that decision to come out any day now from our Iowa Supreme Court. So, I ask you to pray for this: pray for justice [….] We know the law is on our side. We absolutely do.”
Really?
Imagine a scenario where a future governor says: “As governor, I will do whatever it takes to defend the most important freedom there is: the right to liberty.” And an Iowa Senate President says: “the right to liberty is the one that is enshrined in the state Constitution and should be safeguarded above all other rights.”
Consistency would require me to point out that the purported supremacy of the right to liberty is also not in Iowa’s Constitution, that in that document freedom is not prioritized over life. In the scenario I have described, would an Iowa attorney general also proclaim, “pray for justice… We know the law is on our side”?
Top image is cropped from a photo published on Attorney General Brenna Bird’s political Facebook page on June 22, 2024. Bird is standing third from the right.
Editor’s note from Laura Belin: The Iowa Supreme Court is expected to publish its decision on whether to allow the state to enforce its near-total abortion ban on June 28. Bleeding Heartland covered the legal arguments before the justices here.