By MIKE MANNO
On January 22, the anniversary of the Supreme Court’s Roe v. Wade decision legalizing abortion, and only days after hundreds of thousands marched in the nation’s capital in support of overturning that decision, a state district court judge released his opinion that Iowa’s Heartbeat legislation was unconstitutional.
The Heartbeat law, in effect, prohibited abortions once a fetal heartbeat could be heard. It was passed by a Republican legislature and signed into law last May by Republican Gov. Kim Reynolds. If allowed to stand, the law would have been the strictest abortion law in the nation, and possibly a vehicle to eventually overturn the permissive abortion Roe ruling. (See last week’s Wanderer, p. 7B, “State Judge Strikes Down Iowa Heartbeat Abortion Law.”)
Immediately after its passage, Planned Parenthood, its chief abortionist, and a local women’s clinic filed suit to overturn the law. When Democratic Attorney General Tom Miller refused to defend the law, the state’s executive council accepted an offer by the Thomas More Society to step in on behalf of the state, and one of its top litigators, Martin Cannon from its Omaha office, took over the state’s defense of the law.
Early on in the case, as is usual in these situations, the judge, Michael Huppert, issued a temporary injunction against the law’s enforcement until the matter could be tried. Last December both sides squared off in Huppert’s courtroom to argue Planned Parenthood’s motion for summary judgment, which would eliminate a trial on the issue, claiming that there was no genuine issue of material fact, and that it was entitled to judgment as a matter of law.
On the Roe v. Wade anniversary, Huppert released his opinion which granted the motion for summary judgment and ruled that the law itself was unconstitutional. Interestingly, the judge held that the law’s unconstitutionality was to the Iowa constitution, not the U.S. Constitution. That, of course, will have a major impact on a later appeal to the U.S. Supreme Court. Normally, each state’s interpretations of its own constitutional provisions belong to the state court system and will not be reviewed by the U.S. Supreme Court.
Cannon and crew will probably appeal to the Iowa Supreme Court; however, their likelihood of success doesn’t look great. Just before the fetal heartbeat law was approved, the State Supreme Court struck down part of a 2017 law that established a 72-hour waiting period for abortions. It did, however, leave standing a ban on the procedure after 20 weeks.
Huppert based his decision on the concept of viability. “Viability is not only material to this case, it is dispositive on the present record,” he wrote.
“The Iowa Supreme Court held that a woman’s right to decide whether to terminate a pregnancy is a fundamental right under the Iowa constitution, and that any governmental limits on that right are to be analyzed using strict scrutiny. A strict scrutiny analysis requires any legislative infringement upon a fundamental right to be narrowly tailored to serve a compelling interest,” he wrote.
The judge noted that there were only two such compelling interests by the state: to protect the woman’s health and safety; and to promote potential life. Clearly, in this case, the compelling interest, if there was one, was in promoting potential life, he said.
Quoting from the Roe decision, he wrote: “With respect to the state’s important and legitimate interest in potential life, the ‘compelling’ point is at viability. This is so because the fetus then presumably has the capacity of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the state is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.”
Thus, Huppert held that the state may not prohibit a woman from making the choice of abortion before viability; to do so would place an “undue burden” on a woman’s decision that cannot survive the strict scrutiny analysis. The Iowa Supreme Court has held “that any legislative restriction on a woman’s fundament right to decide to terminate a pregnancy should be measured solely by a strict scrutiny analysis,” he wrote.
Thus, he reasoned, that while a heartbeat may be found in a six or eight-week-old fetus, the state cannot prohibit the abortion because the fetus is not viable at that point in its development.
“Faced with the uphill battle…the [state argues] in the alternative that [the law] does not impose a ban on abortions, but merely creates a window of opportunity for women to be vigilant in the exercise of their right to terminate a pregnancy; in other words, if women are to be able to exercise this right, they must also exercise the concomitant responsibility to monitor the potential of a pregnancy and terminate that pregnancy prior to the detection of a fetal heartbeat,” he wrote.
“This argument is nothing more than an attempt to repackage the undue burden standard rejected by the Iowa Supreme Court [and] would relegate the individual rights of Iowa women to something less than fundamental,” he concluded.
Reaction to the decision was predictable. Gov. Reynolds in a statement said, “I am incredibly disappointed in today’s court ruling, because I believe that if death is determined when a heart stops beating, then a beating heart indicates life.”
The Senate Democratic leader Janet Peterson said, “This extreme law should have been overturned because it restricted the freedom of Iowa women and girls to care for their bodies and it forced motherhood on them.”
The Family Leader, a leading conservative pro-family group, issued this statement: “We all know that when an unborn child’s heart is beating, she’s clearly a living being. She’s a Baby. And her life deserves protection under the law.”
Republican State Rep. Sandy Salmon, the main sponsor of the bill in the Iowa House, reacting to the grant of summary judgment, remarked: “He [the judge] didn’t even let it go to trial so that an unborn baby could be defended in court.”
Martin Cannon, who argued the state’s case, said that the bill was very narrowly drawn by saying that since a beating heart signifies life in the fetus and all life must be protected. He did not immediately say whether or not the state would appeal the ruling, but he did take exception to the court’s summary judgment finding that there were no material facts in dispute. He argued that there were disputed facts and issues that should be heard at a full trial and the judge should not have ended the suit without such a trial.
I would expect that an appeal will be filed. Stay tuned. At least Iowa does ban abortion after 20 weeks, unlike New York that just permitted abortion any time, right up to birth, and for any reason
The world is being turned upside-down, my friends. This is a battle that we must continue to fight — for if not us, then who?
(You can contact Mike at: DeaconMike@q.com.)
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