By MIKE MANNO
About a year ago (June 15, 2017 edition), I reported on the Iowa Supreme Court ruling that recognized wrongful birth as a legal cause of action in the state. The genesis of the ruling was a claim by the parents of a disabled child against a hospital and certain physicians for not timely disclosing a fetal abnormality that would have allowed the mother to abort the child.
Initially the parents’ lawsuit was dismissed by the trial court because the action was for a claim — wrongful birth — that had not been recognized. On appeal the Iowa Supreme Court ruled that “wrongful birth fits within common law tort principles of governing medical negligence claims, and no public policy or stature precludes the cause of action,” it said. “The compensable injury in a wrongful birth claim is the parents’ loss of opportunity to make an informed decision to terminate the pregnancy.”
The lone dissenter, Edward Mansfield, argued that recognizing wrongful birth was contrary to public policy and was not supported by common-law precedents. However, after a survey of what other states had done, the majority recognized wrongful birth as a legitimate cause of action, then off-handedly noted that the legislature could overturn the ruling statutorily as 12 other states had done.
This June, the GOP controlled legislature did exactly that. It passed House File 2165 which banned such lawsuits, whether styled as wrongful birth or wrongful life claims. Gov. Kim Reynolds, a pro-life Republican, signed the bill into law and it took effect July 1, effectively ending Iowa’s flirtation with such suits.
The Heartbeat Bill
As I wrote two weeks ago, Iowa’s tough new abortion law was attacked by the ACLU, Planned Parenthood, and several abortion providers. When the state’s attorney general, Tom Miller, refused to defend the law the state accepted the offer of the Thomas More Society to do so, at no cost to the state. Appointed too late to mount an effective defense to the suit at a hearing for a temporary injunction, Martin Cannon, the lead attorney for the Thomas More Society, agreed to a temporary injunction until the ACLU suit could be fully heard and defended.
Cannon now might find himself in a tight spot. He is effectively the state’s attorney defending the law, but a pro-life coalition, objecting to exceptions in the bill, is now attempting to intervene to have certain parts declared unconstitutional. The question for Martin is how to defend the bill against what should be a “friendly” party. Might another pro-bono attorney be needed to pick up the slack?
Here is what the commotion is about:
The Heartbeat Law bans abortion after a fetal heartbeat is found. There are exceptions such as conditions which endanger the mother’s life, rape, incest, and fetal abnormality that “in the physician’s reasonable judgment is incompatible with life.”
When the Iowa Senate passed the bill, none of the above exceptions were in it. However, when it got to the House several unnamed Republican members would not support the bill without the exceptions. Thus the leadership authorized the addition of the exceptions then passed the bill; the Senate concurred with the amendment and sent it to the governor who signed it into law.
Pro-life organizations in the state supported the bill without the exceptions and fought to keep them out of the bill, but once the amendments were adopted by the House, pro-lifers supported the bill and urged Gov. Reynolds to sign it, which she did.
Enter Save The 1, a pro-life group made up of members who were conceived in rape, incest, or sex trafficking and mothers who have become pregnant in the same manner. In addition, it has members who have been told by their physicians to abort their unborn children due to fetal abnormalities. It seeks to intervene in the case to argue that the law’s exceptions for rape, incest, and fetal abnormalities are unconstitutional.
In its petition to intervene, Save The 1 asserts that it has standing for intervention because it represents “people conceived in rape and diagnosed with fetal amoralities” who are targeted by the exceptions.
The interveners make the following points, among others, in attacking the exceptions:
“The rape, incest, and fetal abnormality exceptions are based upon a fabrication that aborting these unborn children is ‘medically necessary.’ Not one witness testified in the Senate hearing as to such medical necessity.”
The bill fails to define the terms rape, incest, fetal abnormality, or incompatible with life.
“The targeting specific people, such as the members of Save The 1, for exclusion from the protection of the law is unfair discrimination” and sends the message that these people are not worthy of living and did not deserve to be protected like everyone else.
“A person’s immutable characteristic, such as being a child conceived in rape, or physical disability does not allow the government to devalue that person or withhold legal protection from that person.”
“Rapists, child molesters, and sex traffickers benefit from abortion, which destroys the evidence and enables them to continue perpetration of their crimes without consequences.”
The motion to intervene asks the court to strike the exceptions as vocative of equal protection and due process, but to uphold the remainder of the bill.
Signing as attorneys for Save The 1 were Rebecca Kiessling, founder of that organization who was conceived by rape, Eric Borseth, a local attorney and member of the board of Personhood Iowa, another pro-life organization, and Erin Mersino of the Great Lakes Justice Center.
Mersino is an extremely talented attorney who claimed many pro-life legal victories and obtained one of the earliest injunctions against Obamacare’s HHS mandate. She was a frequent guest on my old Faith On Trial radio program and in 2013 was given the Defender of the Faith award by Legatus, an organization of Catholic business leaders.
Martin Cannon and the Thomas More Society were also frequent Faith On Trial guests, so I know firsthand that this is going to be a talent-rich legal bench, all pro-lifers defending the law while attacking certain provisions in it.
Iowa pro-life organizations are caught in a bit of a bind. They opposed the exceptions yet supported the bill. Thus they are taking no official position on the Save The 1 intervention except to say its argument “demonstrates why the Coalition of Pro-Life Leaders opposed adding the exceptions clause to the Heartbeat Bill in the first place.”
Spokeswoman Maggie DeWitte, executive director of Iowans for Life, continued, “We know the child in her mother’s womb, regardless of physical disability or how she was conceived, she’s a baby. So we will support the efforts of the Thomas More Society to defend the Heartbeat Law, and we will continue to work until all life in the womb is treasured and protected.”
It’s going to be an interesting day in court. I might just play hooky and attend . . . and maybe take my autograph book.
(You can contact Mike at DeaconMike@q.com.)
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