Iowa basically bans all abortions, which means another Roe v. Wade test case is coming

Photo credit: Daveynin via Flickr

By Dan Calabrese

States who pass abortion laws like this know exactly what they’re doing, although I have yet to see one that goes as far as this one from Iowa.

The Iowa Legislature has now passed a bill that bans all abortions that occur after a fetal heartbeat can be detected. Since that’s as early as six weeks, which is often before a woman even knows she’s pregnant, that’s effectively a ban on abortion. I suppose there could be some cases where a woman gets tested as soon as she misses a period, gets the positive test and heads straight for Planned Parenthood, but as a practical matter this is about as comprehensive a ban as we’ve ever seen coming out of a state since 1973.

Iowa is under no illusions about what’s going to come next. The court battle is inevitable, and that’s the whole idea:

The legislation is aimed at triggering a challenge to Roe v. Wade, the U.S. Supreme Court’s 1973 landmark decision which established that women have a constitutional right to an abortion, activists on both sides of the issue said.

Abortion opponents aim to land abortion questions back in front of the nation’s top court, where they believe the 5-4 conservative majority could sharply curtail abortion access or ban it outright.

“We created an opportunity to take a run at Roe v. Wade – 100 percent,” said Republican state Senator Rick Bertrand of Sioux City, who said the legislation is designed to be “thrust into the court” that has become more conservative following President Donald Trump’s appointment of Justice Neil Gorsuch.

Spokeswoman Becca Lee of Planned Parenthood of the Heartland, which supports access to abortion, called it an “intentionally unconstitutional ban on 99 percent of safe, legal abortion, designed to challenge Roe v. Wade.”

Why yes, of course it is. Case law can’t be overturned without a test case by which to overturn it. The Supremes can’t just issue a ruling tomorrow saying they’ve decided Roe v. Wade is bad law and needs to be overturned. It doesn’t work like that. They need the opportunity to rule on a state law like this, and in the process decide that either a) it’s consistent with existing case law precedent, which it clearly isn’t; b) it’s inconsistent with existing case law precedent and therefore must be thrown out; or c) the case law precedent itself is bad law and needs to be thrown out in order to uphold the Iowa law.

Iowa is provoking the legal fight in the hope of getting to outcome C.

Is that likely? If the makeup of the Court doesn’t change at all, I’d say no. Justice Kennedy has shown no appetite for overturning Roe v. Wade, and it’s hard to say for certain where Chief Justice Roberts or Justice Gorsuch would stand, if only because Roberts has shown a willingness to depart from conservative legal thought and Gorsuch is just too new. You know the four liberals would vote to keep Roe in place. Justices Thomas and Alito are the only ones I’d say with confidence would vote to throw out Roe in its entirety.

But that doesn’t mean it couldn’t happen. Cases like these take time to wind their way through the court system before they end up at the SCOTUS, assuming the SCOTUS takes the case at all, which is not guaranteed. By then, you could see a change. Kennedy could retire. None of them are immortal. Things could happen. Then again, there’s no guarantee we have a Republican president after January 20, 2021 either, and we could get a Democrat Senate starting next year, that would absolutely refuse to confirm any nominee to the Supreme Court that doesn’t promise to keep abortion legal.

By the way, let’s also remember: If Roe v. Wade is overturned, that does not ban abortion per se. It merely gives each of the 50 states the freedom to ban it if they want to. The likely outcome would be that some states would ban it and some wouldn’t, and women who want abortions would simply go get them in states where it’s legal. I realize how much the overturning of Roe v. Wade has been the holy grail for the pro-life movement for the past 45 years, but the truth is it wouldn’t reduce the number of abortions very significantly.

Only a change in people’s hearts will do that. Even so, Roe v. Wade is bad law and it should be overturned. It looks like Iowa is the latest state to take a run at making it happen.

Dan writes Christian spiritual warfare novels and does all kinds of other weird things too. Follow all his activity by liking him on Facebook!