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By Martin A. Cannon

I have thoroughly reviewed the bill introduced by Senator Bolkcom. I have also reviewed the existing statutes he is proposing to amend by it.

There are two very plain legal defects, and three plain practical defects in the bill. 

Senator Bolkcom’s new language provides that with respect to a specialized outpatient surgical facility (a twenty week abortion clinic) a certificate of need may only be issued if the clinic “will be located in close proximity to a hospital licensed pursuant to chapter 135B that provides the appropriate level of perinatal care consistent with 641IAC150…”  There are two separate problems with this provision.

First, “close proximity” is utterly undefined in either the old or the proposed language in the statute.  It renders the statute overly vague and facially unconstitutional.  Constitutional lawyers and judges are well acquainted with the idea that a statute may be void for vagueness. This one is.

The second problem with this provision is that there is no such thing as an “appropriate level of perinatal care consistent with 641 IAC 150.”

641 IAC 150 is a provision in the Iowa Administrative Code providing that hospitals may, if they choose to do so, obtain certification as to what level of care they can provide newborn infants. Several levels of care are defined.  A hospital obtaining certification for any particular level may advertise that.  But, no participation in the process is required and no particular level of care is identified as “appropriate” as contemplated by Senator Bolkcom’s bill.

Like the “close proximity” language, the “appropriate level of perinatal care” language is utterly vague and meaningless.  It also renders the statute void for vagueness.  Those two problems together make the statute almost unquestionably unconstitutional on its face.  

Even assuming the bill didn’t suffer the two legal defects I’ve mentioned, it has three very serious practical defects. 

First, it applies only to new or newly changed facilities.  It does not apply to existing facilities or operations.  This is true for two reasons.  At Section 135.63, the existing statute provides that “a new institutional health service or changed institutional health service shall not be offered or developed in this state without prior application to the department for and receipt of a certificate of need, pursuant to this division.” 
In addition to that, Senator Bolkcom’s new language includes the following:

“APPLICABLILITY.  The provisions of this act shall apply to a specialized outpatient surgical facility offered or developed in this state on or after the effective date of this Act.”  In Senator Bolkcom’s bill, a “specialized outpatient surgical facility” is an abortion clinic that provides abortions at or after twenty weeks.

Second, the bill does not prohibit twenty week abortions at all.  They could still be done by Dr. Carhart or any other abortionist at any existing clinic where surgical abortions are now performed.  They could also be performed at a new clinic, built for that purpose, simply by satisfying the criteria set forth in the statute for the grant of a certificate.  These requirements are not onerous.  Every hospital and most of the significant outpatient surgical clinics built in the state of Iowa over the last twenty years or more have satisfied those requirements. 

Third, Senator Bolkcom’s bill does not address fetal pain.  He does give it a nod by defining the restricted clinics as those doing abortions at twenty weeks or more.  However, because he omits the fetal pain as a basis, and because the bill exempts from most all other outpatient clinics, a serious argument can be made, especially in light of the chatter in the media about keeping Carhart out of Iowa, that the bill improperly singles him out and impairs his right to perform abortions that are otherwise legal.  He could make a strong argument that the bill violates the Equal Protection Clause of the U.S. Constitution.

These are not trivial criticisms. They reflect a bill hastily drafted. If Senator Bolkcom’s bill passes, it will not stand. Nothing will have been accomplished, even by those claiming they want to keep Carhart out of Iowa.

Senator Bolkcom’s bill does not protect Iowa’s unborn children or their mothers.

Martin A. Cannon is an  attorney practing in Nebraska and Iowa.  He has more than 20 years of experience representing women harmed by abortion and pro-lifers needing legal representation.  He is very familiar with Leroy Carhart’s time in Bellevue, NE having been involved in federal trial against Carhart in 2007.

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1 comment
  1. This substitute bill sounds really weak and lame even if it is constitutional. Senator Bolkcom is my senator.  I have let him know that I am not a fan of his bill and encouraged him to support at least a full senate vote on HF 657 instead, but I doubt he will listen.  As far as the constitutionality of HF 657 or the Nebraska law on which it is based, I have to wonder why Dr. Carhart moved instead of challenging the Nebraska law in court- as he has done at least twice in the past.  Maybe it’s because the Supreme Court rejected his last challenge in 2007 in Gonzales v. Carhart.   

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