Republicans hope a challenge to Iowa's fetal heartbeat bill will overturn Roe v. Wade. How would that work?
Stephen Gruber-MillerIowa Republicans took a step toward passing the strictest abortion ban in the nation early Wednesday — one that everyone agrees would end up in court if it becomes law.
But which court?
Iowa lawmakers passed Senate File 359 early Wednesday, advancing the legislation to Gov. Kim Reynolds.
Republicans who debated the legislation late into the night said they hope their law will face a legal challenge so it can advance to the U.S. Supreme Court. Their goal is to overturn the 1973 landmark case Roe v. Wade, which established that women have a constitutional right to an abortion.
The Supreme Court has declined to hear similar cases in recent years. But as states continue to pass legislation restricting abortions and President Donald Trump appoints more conservative federal judges, such as Justice Neil Gorsuch, abortion opponents are increasingly optimistic.
"The science and technology have significantly advanced since 1973," said the bill’s floor manager, Rep. Shannon Lundgren, R-Dubuque. "It is time for the Supreme Court to weigh in on the issue of life. It has taken decades for the science to catch up to what many have believed all along: that she’s a baby."
What would it do?
The legislation would ban most abortions after a fetal heartbeat is detected, at about six weeks into a pregnancy — often before many women even know they’re pregnant.
Groups that have challenged other abortion restrictions in Iowa, such as Planned Parenthood of the Heartland and the American Civil Liberties Union of Iowa, have decried the bill as unconstitutional, foreshadowing an all-but-certain lawsuit.
Democrats on Tuesday urged their Republican colleagues to reconsider the bill, which they said will drive some women to seek out-of-state abortions and others to seek out more dangerous methods of terminating a pregnancy.
"All women, regardless of age, income or race, should be able to obtain reproductive health services, including abortion, free from political and economic barriers," said Rep. Beth Wessel-Kroeschell, D-Ames.
The bill previously did not include any exceptions to the ban in cases of rape or incest. Republicans amended the bill Tuesday to include those exceptions. The Senate approved the amended legislation overnight to send it to Republican Gov. Kim Reynolds' desk.
More:Iowa House approves fetal heartbeat ban after some exceptions added for rape, incest
'A case in the pipeline'
Conservatives' argument for passing a law now is that by the time it reaches the U.S. Supreme Court — which could take three or four years — Trump could potentially have appointed another one or two justices who could bolster Gorsuch and overturn Roe.
Several national groups are gearing up for a fight to replace Justice Anthony Kennedy, who legal experts speculate could retire as soon as this year. Kennedy was nominated by President Ronald Reagan, but has voted in favor of abortion rights in key cases.
In the meantime, Trump continues to appoint federal judges to lower courts "and all the other justices have gotten three years older," said Martin Cannon, a senior counsel for the Thomas More society, a national law firm that defends abortion restrictions and religious freedom laws around the country.
"There’s a real decent chance that we’re going to wind up with another justice or two to tilt the balance a little bit, and we need to have a case in the pipeline," he said.
Opponents of Iowa’s legislation say it clearly violates long-standing legal precedent, beginning with the Roe decision, that has found women have a constitutional right to an abortion before viability.
The fact that the Supreme Court upheld the right to an abortion in several cases over the years makes it extremely unlikely it will reverse course, said Hillary Schneller, a staff attorney for the Center for Reproductive Rights, a national organization that has filed legal challenges to abortion restrictions in other states.
"The composition of the court always changes over time, but bedrock principle of the rule of law remains stable because the justices are bound by the idea that they have to respect and follow established precedent," she said.
What could convince the Supreme Court to hear a heartbeat challenge?
The last time the Supreme Court had the chance to hear a challenge to a heartbeat law, it declined to do so.
In 2016, the court rejected requests to hear challenges to a fetal heartbeat law in North Dakota and a 12-week abortion ban in Arkansas. The Supreme Court’s refusal left in place lower court rulings that blocked those laws.
"In a way, it’s just too easy a case," said Paul Gowder, a law professor at the University of Iowa who teaches constitutional law. "The Supreme Court very rarely chooses to weigh in on cases that are easy with respect to its prior case law."
The 8th U.S. Circuit Court of Appeals struck down the North Dakota law in 2015. The federal appeals court sits one step below the Supreme Court and has jurisdiction over Iowa cases. Trump has appointed three new judges to that court since its decision in the North Dakota case.
One scenario that could cause the Supreme Court to take up a heartbeat law would be a circuit split, in which two federal appellate courts disagreed about whether similar laws are unconstitutional. Chuck Hurley, chief counsel for the Family Leader, a faith-based group that opposes abortion, believes this will happen. "There’s going to be a circuit split. We don’t know when, I don’t know which panel, but Roe is a tattered mess from the day it was signed," he said.
But the fact that the 8th Circuit, a relatively conservative federal court, has refused to uphold a heartbeat law illustrates the challenges facing this approach. Lower courts are bound by Supreme Court precedent.
"They’re judges; they’re not politicians," Gowder said. "It would be extremely surprising, essentially, for an appellate court to uphold one of these bills."
State are passing stricter abortion restrictions. Courts are knocking them down.
Iowa already has a law on the books that bans most abortions after 20 weeks. It is one of 18 states with such a law, according to the Guttmacher Institute, a research group that supports abortion rights.
Laws in Arizona and Idaho that restricted abortions after 20 weeks have been struck down in federal court, but the Supreme Court has not weighed in on the issue. Iowa's 20-week prohibition has not been challenged in court.
Mississippi passed a law earlier this year that would ban abortion after 15 weeks, and Kentucky passed a law last month banning a certain abortion procedure after 11 weeks. Both laws currently face court challenges.
As Trump continues to appoint conservative judges to the federal bench and states pass an increasing number of abortion restrictions, conservatives believe the Supreme Court will be forced to revisit the issue.
"When you consider that and when you consider the increasing number of states that are pushing pro-life legislation, it’s unquestionable that Roe and its progeny are going to get reversed. There is going to be a change there. There has to be," Cannon said.
Elizabeth Nash, senior state issues manager with the Guttmacher Institute, said the takeaway from legal challenges to abortion bans is that courts have generally not supported such restrictions.
"Over the past several years, the (Supreme) Court has had the opportunity to take an abortion ban case, and hasn’t done it," she wrote in an email.
What about the Iowa Supreme Court?
If opponents of the heartbeat bill are worried about their chances in federal court, they could bring a lawsuit in state court instead.
Planned Parenthood took this path in two other cases challenging abortion restrictions in Iowa. In 2015, the Iowa Supreme Court upheld the use of telemedicine abortions after a state board banned the practice.
And in February, the Iowa Supreme Court heard oral arguments in a case challenging a 72-hour waiting period before a woman can obtain an abortion. The court will issue a decision in that case in the coming weeks.
If the Iowa Supreme Court struck down a heartbeat law on state constitutional grounds, that would be the end of the matter.
"If a state supreme court makes its ruling under state constitutional law, the U.S. Supreme Court doesn’t get to review that," said Gowder, the UI professor.
But if the state supreme court were to decide the case based on the federal constitution, the U.S. Supreme Court could review that decision.
In the telemedicine abortion case in 2015, Planned Parenthood urged the Iowa Supreme Court to find that the Iowa Constitution grants women the right to an abortion and to create more robust protections for abortions in Iowa than the federal constitution provides. But the court sidestepped that question at the time.
"We have yet to determine if the Iowa Constitution protects a woman’s right to terminate her pregnancy," the court wrote in that decision.
Reporter Brianne Pfannenstiel contributed to this story.