Iowa Senate Chamber
Photo Credit: Samir Luther (CC-By-SA 2.0)

The Iowa Senate passed SJR 2001, the Protect Life Amendment, by a vote of 32 to 18 on Thursday afternoon. The proposed amendment if passed in two concurrent general assemblies and ratified by voters would state that there is no right to abortion or taxpayer funding of abortion in the Iowa Constitution.

The amendment reads:

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 vote was along party lines with every Republican voting in favor of the proposed amendment and every Democrat voting against.

The bill was passed out of the Iowa Senate State Government Committee in late January. The Iowa House Judiciary Committee just advanced the House companion version on Wednesday.

“SJR 2001 became necessary when five unelected judges on the Iowa Supreme Court in a split decision on June 28, 2019 invented a supposed fundamental right to abortion by declaring itself ‘freed from the private views of the constitution’s framers’ and to rule on ‘evolving standards’ instead,” State Senator Jake Chapman, R-Adel, the floor manager for the bill, said in his opening remarks during the floor debate.

“Their use of legal jargon failed to disguise the real effect of that decision and resulted in what can only be seen an illegitimate amendment to the state constitution itself. The people of Iowa, however, are the only political power with the authority to change or amend Iowa’s constitution. Nowhere, in our Constitution, will you find any other entity that is given that power. Not this body, not the chamber across the way, and not our governor. And certainly not five unelected judges,” he added.

“If we do not protect the Constitution by passing SJR 2001, Iowa will be on a course to recognize abortion rights up to the moment of birth as seven other states have already done. And, as warned, by the dissenting judges, Mansfield and Waterman, Iowans will likely be required to pay for elective abortions. It is quite reasonable and appropriate for this Senate to consider this resolution and pass it today. In fact, I would argue it is our solemn responsibility do so out of respect for the legislative branch and the separation of powers we should pass it, but more importantly, out of respect for the people where all political power resides, we should pass it and pass it again so the people of Iowa can be heard,” Chapman concluded.

Several Democratic senators rose in to speak in opposition to the bill during the two hours of debate.

“This bill is just a small part of a coordinated effort to overturn Roe v. Wade at the national level and if the Supreme Court kicks the decision back to the states, it is an effort to weaken the protections of the Iowa Constitution,” State Senator Claire Celsi, D-West Des Moines, said during her remarks.

“Constitutions are written to give people rights, not take them away,” State Senator Todd Taylor, D-Cedar Rapids, argued during his remarks. “State senators do not have the ability to take people’s rights and freedoms away, and yet, here we are.”

State Senator Joe Bolkcom, D-Iowa City, implied that opposition to abortion was on religious grounds only and appealed to the “separation of church and state.”

“I recognize that not everyone agrees when it comes to abortion. Some people’s faith influences their belief about abortion, and I respect that. But I also respect the separation of church and state in making laws that apply to all Iowans. Iowans hold all sorts of beliefs. Some people have a God, some people don’t. I think that we can all agree that pregnancy is unique and people must have the freedom to make decisions about their pregnancy in consultation with their doctor,” he said.

“This amendment takes away the rights of women, it does not protect us. It hurts us, and it is not fair,” State Senator Jackie Smith, D-Sioux City, stated.

Several state senators, like State Senator Nate Boulton, D-Des Moines, cited the right to privacy that the U.S. Supreme Court cited when it ruled in favor of abortion in 1973.

“In 1973, the United States Supreme Court decided in Roe v. Wade, and declared that the Constitution and the Bill of Rights did in fact purposely protect the fundamental right to privacy and the right to equal protection under the law among our citizens,” he said. “A right that was not created by the United States Supreme Court, but rooted fundamentally in the foundations of our government.

“The Constitution does not explicitly mention any right of privacy, yet is is found in the roots of the First Amendment, in the Fourth and the Fifth Amendments, yes, they’re in the penumbras of the Bill of Rights that were well established in case law before Roe v. Wade. It is a right that we had recognized with a home in the 14th Amendment too. Personal privacy was not a right created in 1973, it is a right that exists whether we agree or disagree how an individual chooses to exercise that right,” Boulton said citing the late Iowa Supreme Court Chief Justice Mark Cady.

State Senator Liz Mathis, D-Hiawatha, argued that SJR 2001 would not hold up in court.

“I believe that SJR 2001 will be ruled unconstitutional when challenged, and it will be challenged. The abortion bills presented before SJR 2001 have been ruled unconstitutional and, I believe, will be ruled unconstitutional. And the bills that I assume will come after SJR 2001 will also be unconstitutional,” she said.

Considering SJR 2001 is a proposed constitutional amendment, it’s difficult to see how it could be challenged in state court. Also, considering it doesn’t actually ban abortion, it’s also difficult to see a successful challenge in federal court.

“An unconstitutional constitutional amendment: a concept in judicial review based on the idea that even (a) properly passed & properly ratified constitutional amendment, specifically one that is not prohibited by a constitution’s text, can be unconstitutional on substantive grounds,” she wrote on Twitter responding to this writer.

Caffeinated Thoughts inquired whether she believes this to be case at the federal level or the state level.

State Senator Zach Wahls, D-Coralville, questioned whether the proposed amendment could lead to Republicans trying to ban contraceptives.

Senate Minority Leader Janet Petersen, D-Des Moines, pointed out the decline of delivery rooms in rural Iowa which has nothing to do with abortion debate as health care facilities in general have disappeared in rural Iowa.

She accused Republicans of “mansplaining” and said that the amendment was a “kick to a woman’s uterus.”

Petersen and other Democrats also pointed out that the Iowa Senate passed a resolution in celebration of the 100th anniversary of the 19th Amendment which gave women nationwide the right to vote implying the vote on SJR 2001 was somehow hypocritical. They failed to mention that those early suffragettes, like Elizabeth Cady Stanton and Susan B. Anthony were also pro-life.

Several Republican state senators spoke in support of the measure.

“When we talk about judicial activism…. this is the very essence of what we are talking about with judicial activism. There have been a lot of speakers who gone to great lengths, I think, to do a lot of research and, I think, thoughtfully prepared their remarks. But you listen to the language and you listen, it’s broad. They’re penumbras, we had to go to find penumbras and emanating from shadows. We’ll probably have to get a dictionary out to find out what that means. It is a tortured legal analysis that legalized the right to abortion in the United States in 1973,” State Senator Zach Whiting, R-Spirit Lake, said in response to some of the Democrats’ arguments.

“The word ‘abortion’ doesn’t appear in our constitution or the United States Constitution… And when I say the phrase judicial activism, I don’t it lightly, but this is the very essence of that. A word, not in our constitution, a right to that word was recognized by a court, invented by a court, and what is at issue, I think, is that they subjected that right to a higher level of scrutiny than Roe, Casey, and their progeny – the undue burden standard. And our court in Iowa created this right and subjected it to strict scrutiny which is higher, the highest, level of scrutiny and so that’s the wrong process,” he argued.

“What the court did was wrong, and now we have to, on behalf of the people, go back and try to fix it,” Whiting concluded.

State Senator Randy Feenstra, R-Hull, challenged opponents of the proposed amendment.

“I have one question, what are you scared of? Really, what are you scared of? We are asking to take it to the people of Iowa. So what are you scared of? We want to take it to the people, let’s let the people decide. Why don’t you want that to happen?” he asked.

“Are you scared that people are starting to see that these are humans? You get the ultrasound, yep, it’s a human. It’s got a heart, its got hands, its got legs, its got a face, and yet we are destroying them,” Feenstra said.

“Our Constitution was created to set the boundaries of our humanity, the way each individual was to be treated, with dignity,” State Senator Jim Carlin, R-Sioux City, said.

“A new way to challenge those boundaries has come about, and we see it every day. It’s when you don’t get what you want, you dehumanize the man or woman or child who stands in your way. You dehumanize them, to create license, to ignore boundaries of self-determination. The Constitution is what shielded us from that,” he said. “It was put there to recognize the personhood of each of us.”

Carlin noted that our society demarginalizes the humanity of anything that stands in the way of people trying to get what they want, even if it is “a baby in the womb of its mother.”

State Senator Julian Garrett, R-Indianola, emphasized the intent of the amendment, ultimately, is to give the people of Iowa a say.

“Let’s let the people exercise the power that the Constitution says they have, let them exercise it and decide whether they think there should be a right to abortion in the Constitution or not,” he said.

State Senator Mariannette Miller-Meeks, R-Ottumwa, shared the story of a friend who was advised to abort her child because of possible developmental problems. She advised her not to, the baby was fine, and has outlived his father. She then echoed Garrett’s remarks.

“So if you are asking, should I have the right to vote? The people of Iowa should have the right to vote on this issue. The Supreme Court in making their decision took away their right of people and states to make that decision. This resolution is asking for people to make that determination, the people of Iowa to vote on this issue,” she said.

State Senator Roby Smith, R-Davenport, also rose in support.

“From the debate I’m listening to today, you would think that we are actually passing a bill that would change the Code of Iowa which we’re not. SJR 2001 is about we the people. It is a simple choice, to allow the people to decide whether it is going to be the legislative branch, 150 duly elected, senators and representatives, and also the executive branch, duly elected governor, or is it going to be the judicial branch?” he said.

“This is a constitutional amendment that empowers the people of Iowa, and gives them a voice on this critically important issue,” he added.

“They are going to have a final say, just the way it should be,” Smith concluded.

Chapman gave concluding remarks and pointed out that he needs to keep repeating the truth because Democrats falsely said the amendment would ban abortions and contraceptives, as well as, keep obstetricians and gynecologists from practicing in the state.

“We’ve heard fear mongering on your side. ‘We are going to take away all abortion rights.’ The people of Iowa won’t be fooled. They are smarter than that. They can read the language of the amendment,” he said.

Chapman pointed out that the Iowa Supreme Court in its ruling ignored the Iowa Constitution’s clear claim in Article 1, Section 1 that Iowans enjoy a right to life.

He pointed out that no Democrat, aside from Boulton attempted to defend the rationale of the Iowa Supreme Court’s interpretation of Article 1, Sections 6 and 9, ruling that the state’s equal protection clause and due process clause gives the right to abortion.

Chapman pointed out that the Iowa Supreme Court went beyond Roe to give the right to abortion strict scrutiny.

“Prior to 2018, I never heard anyone going around saying that women had a right to abortion based on Iowa’s Constitution. You may have made that argument based on the federal constitution, but you never heard that under Iowa’s Constitution. But now because the courts made this new fundamental right, ‘Heaven forbid, Republicans are taking the right away. No, we are restoring the right of the people to govern themselves, not unelected judges,” he said.

Chapman also pointed out that if Democrats wanted a fundamental right to abortion codified in Iowa’s Constitution could propose a constitutional amendment to do that.

“We can go through a painstaking process, it’s not an easy process, and we can put it to a vote of the people. But I’ve not seen one of you put forward an amendment to provide a constitutional right to abortion, rather you are going to rely on judicial activists to create new constitutional rights,” he argued.

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