As the U.S. Senate begins the process of confirming Judge Brett Kavanaugh to the U.S. Supreme Court, abortion advocates have sounded the alarm over the vulnerability of Roe v. Wade, the 1973 Supreme Court decision legalizing abortion.
Recent polling shows a plurality of Americans believe their elected officials, not courts should decide abortion policy.
The Nation Post-Roe
Would abortion be outlawed across the land should Roe v. Wade be overturned? It depends.
“There is no certain answer to what happens when Roe is overturned – only a new tree of possibilities that branch out from there. In one branch, the Supreme Court finds that unborn children are persons under the 14th Amendment, effectively saving millions of lives. In another branch, the court merely defers the abortion question to the states,” Bob Vander Plaats, President and CEO of The FAMiLY Leader, told Caffeinated Thoughts.
Maggie DeWitte, executive director of Iowans for LIFE, believes post-Roe America will see a hodgepodge of abortion laws.
“What has to be understood here is that if Roe is reversed, regulation of abortion would be deferred to the states. Absent new federal law, each state could prohibit or allow abortion according to the will of its people. People wanting abortions could go to states that allow them. People in the states that don’t allow it would start to absorb the respect for life engendered by legislative leadership. Young people would think harder about sex. Marriage would matter again. The horrors we are warned of by the left are largely imaginary. To the rest of normal America, they are good things,” DeWitte told Caffeinated Thoughts.
What would happen in Iowa? Vander Plaats said should the Supreme Court defer to the states, it leaves Iowa in a “precarious position.”
“Our state supreme court recently abused and overstepped its power in imagining a ‘right’ to abortion in the Iowa Constitution. It would take a change to the state court or a state constitutional amendment to protect the lives of mothers and unborn children in Iowa,” Vander Plaats said.
The Iowa Supreme Court ruled against a 3-day waiting period for abortions, and it’s unlikely they will rule in favor of the state in the lawsuit over the fetal heartbeat abortion ban.
In fact, Justice Edward Mansfield in his dissent in the waiting periods case believes Chief Justice Mark Cady wrote his opinion to signal how they will rule over taxpayer funding to abortion clinics in Iowa.
“I wonder if the majority is laying groundwork… perhaps a stepping stone toward a ruling that Iowa’s Medicaid program must fund abortions,” he wrote.
“We strongly disagree with the Court’s judgment that regulation of abortion impinges upon fundamental state Constitutional rights and believe the recent decision finds no precedent in Iowa’s history or legal traditions,” Tom Chapman, executive director of the Iowa Catholic Conference, told Caffeinated Thoughts.
Education has the most significant impact.
Jenifer Bowen, President of Life Right Action, noted that education had made a more significant impact on abortion rates than legislation did in the state.
“Presently we have an Iowa Supreme Court that has made it crystal clear how rabidly pro-abortion they are. Does that automatically translate into higher abortion rates? Consider that since 2007 abortion rates in Iowa have plummeted nearly 50%!” she pointed out in an email to Caffeinated Thoughts.
“Regardless of who is in office or what laws do or don’t pass, education is the key to saving lives. Educating Iowans on the humanity and dignity of unborn children — on the inherent risks and dangers to women, physically, emotionally, psychologically — on what exactly happens in an abortion,” Bowen said. “We can be certain that’s already been the case here in Iowa as pro-life legislation didn’t even start making it to the Governor’s desk until 2017!”
“Even with an extremist Supreme Court in Iowa allowing abortion to remain ‘legal’ in Iowa for the foreseeable future, we will most likely see the downward trend of abortion rates continue as more Iowans become aware of just what abortion is, the intentional killing of unborn babies,” Bowen added.
What the Iowa Legislature can do.
Chapman pointed out a constitutional remedy.
He suggested that the legislature pass a simple constitutional amendment to put before Iowans at the ballot box. The language would read, “Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion.”
Groups like Personhood Iowa would advocate adding personhood language to Iowa’s Constitution.
Beyond a constitutional amendment, Chapman said there are other actions the Iowa Legislature can take.
He said they could pass a “wrongful death” statute.
“That would allow civil damage claims when an unborn child is killed as a result of a third party’s criminal action, negligence, etc. For example, when an unborn child dies due to a drunk driver hitting the mother,” he said.
“We have also suggested legislation in the past that would provide grants for pregnancy counseling to agencies that do not refer to or perform abortions. The idea would be to foster a statewide pregnancy and parenting support system to provide compassionate, practical alternatives to abortion,” Chapman added.
Addressing activist judges.
Joel Kurtinitis in an op/ed at The Des Moines Register pointed out a flawed judicial nominating process that gives the Iowa Bar Association control making it more difficult to appoint originalists to Iowa’s Courts. He suggested Iowans adopt the federal model for judicial nominations with the Governor nominating judges subject to confirmation by the Iowa Senate rather than the Governor having to choose from a list of nominees provided by the unelected judicial nominating commission.
Pro-life activists can also target Iowa Supreme Court justices and judges who have ruled against abortion restrictions, regulations, and bans when they are up for re-election. In 2010, Iowans voted three Iowa Supreme Court Justices off the bench after their 2009 decision striking down Iowa’s Defense of Marriage Act.
Could Iowans do the same for judges upholding abortion rights in a targeted campaign?
It’s unlikely the Supreme Court will make a sweeping decision that would ban abortion nationally. Whether Roe v. Wade is overturned or not Iowa’s pro-lifers have a long fight ahead of them.