The Iowa Senate held a subcommittee hearing on SJR 21, an amendment to Iowa’s Constitution that makes clear there is not a right to abortion or abortion funding in the state’s constitution.
The amendment is in response to the Iowa Supreme Court ruling in 2018 that the law requiring a 72-hour waiting period before an abortion violated Iowa’s due process clause and equal protection clause, thus finding a right to abortion in the state constitution.
Amended in the subcommittee, SJR 21 is the successor of SJR 9 that is sponsored by the Iowa Senate State Government Committee. Should the amendment pass in two concurrent general assemblies and then ratified by voters, the Iowa Constitution will state:
“Protection of life. To defend the dignity of all human life, and to protect mothers and unborn children from efforts to expand abortion even to the day of birth, we the people of the state of Iowa declare that this Constitution shall not be construed to recognize, grant, or secure a right to abortion or to require the public funding of abortion.”
The subcommittee approved SJR 21 as amended it heads to the Iowa Senate State Government Committee for debate. State Senators Jake Chapman, R-Adel, and Roby Smith, R-Davenport, supported SJR 21. State Senator Claire Celsi, D-West Des Moines, opposed.
In his opening remarks, Chapman, the subcommittee chairman, said that the Iowa Supreme Court “usurped the legislative branch” in their decision in Planned Parenthood of the Heartland v. Reynolds, and “invented a fundamental right to an abortion.”
“Any plain reading of our state constitution reveals no such right. For over 160 years of our state’s history, no one has ever suggested that somewhere in the constitution, there was this right. In effect, the Iowa Supreme Court amended Iowa’s constitution. They overstepped their authority in that decision,” he stated.
Chapman noted that justices who wrote the dissenting opinion in Reynolds stated concern that the majority opinion laid the groundwork for taxpayer funding for abortion.
“Many Iowans, regardless of their thoughts on this issue, strongly object to taxpayer (support) of abortion,” he added. “This resolution affirms that there is no constitutional requirement for taxpayer funding of abortion.”
“Senate Joint Resolution 21 is needed to correct this overreach by five unelected judges and restore to the people and their elected legislators the sole right to amend the constitution of our state,” Chapman said.
Celsi said the proposed constitutional amendment would “take rights away” from Iowans.
“If approved, this constitutional amendment seeks to take away bodily autonomy and privacy. The Supreme Court recently elevated its recent decision to include the phrase ‘strict scrutiny’ applies to the right to an abortion. That means that this right is so important that any attempt to diminish this right should be considered a very serious encroachment on individual rights,” she said.
“Strict scrutiny” is a form of judicial review, and it is not descriptive of a particular individual right per se. It requires that a law that the legislature passes must further a “compelling government interest” and written narrowly enough to achieve that interest. It is the highest standard of review when a court determines the constitutionality of government action. Courts typically invoke this review in an equal protection claim.
Tying the right to abortion to the due process and equal protection clause, the late Chief Justice Mark Cady wrote for the majority in Reynolds that the waiting period’s “restrictions on women are not narrowly tailored to serve a compelling interest of the State” and that Iowa’s Constitution “requires more.”
The Iowa Supreme Court’s decision went further than the U.S. Supreme Court’s 1973 decision in Roe v. Wade and is precisely why supporters of SJR 21 want to see it passed and ratified as several pro-life Iowans pointed out during public testimony.
Celsi then attacked Senate Republicans who support the amendment.
“Some Senate Republicans are determined to continue this war on pregnant Iowans to stand directly between an individual who is making a serious and consequential decision for themselves and their family. These Senators want to metaphorically gown up and come right into the surgical suite and tell that trained physician and the person giving birth and their family that they know better. They get to make those decisions,” she said.
There were several members of the public who spoke in favor and opposition to SJR 21 during the subcommittee hearing held in the Old Supreme Court chambers in the Iowa State Capitol.
Martin Cannon, an Iowa attorney who is a senior counsel with the Thomas More Society, spoke first. Cannon represented the state of Iowa in defense of the fetal heartbeat abortion ban.
“That law was struck down when the unelected justices, five of them, of our Supreme Court, discovered, invented, inserted into the Iowa Constitution a fundamental right to abortion where it had never previously existed,” he said.
Cannon said the Iowa Supreme Court’s decision effectively took the matter of abortion out of the hands of the state legislature.
“Through this nation’s history and through the state of Iowa’s history the definition of homicide, in all its forms, the prohibitions on it and the circumstances under which it is justified have been a matter for legislatures. And plainly, the constraints on the killing of a fully human, plainly living, unborn child belong there also,” he added.
Cannon also noted that the amendment does not ban abortion, but gives the legislature the right to debate the abortion question and pass laws accordingly.
“The amendment is a reminder to the court that it gets its powers from us, and it gets its limitations from us also,” he said.
David Sickelka, the senior minister at Urbandale United Church of Christ, was the first member of the public to speak in opposition to the amendment.
“I keep hearing language about this bill that it is up to the legislature to determine what our rights are. And we also have a long history of saying that our rights are not up for a vote,” he said.
“When the founders of our country circulated the Constitution, people bristled at the lack of protections for rights. And over the history of our country, the courts have determined what that means. (Legislators) do not have the primary role in that. The legislature is a part of our system of balances; there are equal roles for legislative, executive, and judicial branches,” Sickelka noted.
He explained his church for the last 20 years has provided “fact-based, faith-based sex education” for their middle schoolers and claimed, noting that he could be wrong, but he is not aware of a single high school girl in his church who had gotten pregnant during that time.
“Now, if we are going to argue about this, if we are going to have these kinds of discussions, let’s focus on things that really work, that really do make a difference in people’s lives. I think that it is wrongheaded to focus on what rights are not in our constitution. We have rights, and they are not granted to us by the legislature, they are granted by the Constitution,” he added.
He’s right. The legislature does not grant rights, but neither does the courts or the Constitution. The Constitution protects our inalienable rights given to us by God. The idea that the Constitution grants us rights would have been anathema to our founders.
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness,” Thomas Jefferson wrote in the Declaration of Independence.
He followed up to say that governments are instituted among men to secure those rights.
So the question of whether there is a right to abortion in the Iowa Constitution is relevant. We do have an inalienable right to life. Jefferson notes it, and the 5th and 14th Amendments to our Constitution protects it. What we do not see in the U.S. Constitution or Iowa Constitution is a right to abortion.
The subcommittee hearing lasted approximately 50 minutes. The subcommittee heard from additional opponents such as Connie Ryan with the Interfaith Alliance of Iowa, as well as representatives from the ACLU of Iowa and Planned Parenthood.
The subcommittee approved SJR 21 as amended it heads to the Iowa Senate State Government Committee for debate.
Listen to the full subcommittee hearing below: