By Allie Carter (CMC ’19)
On May 4, 2018, the state of Iowa took a major leap towards enacting the nation’s strictest regulations on abortion. Colloquially referred to as the “heartbeat legislation,” abortions in Iowa are now prohibited once a fetal heartbeat is detected, which is typically six weeks into a pregnancy. Whether the legislation is constitutional is largely ambiguous, as most women are unaware at six weeks that they are pregnant. Beyond the constitutionality of the legislation, it promises to inspire discourse, as those who support the legislation hope that it could call into question Roe vs. Wade, the precedent-setting 1973 U.S. Supreme Court ruling that instituted that women have a right to end pregnancies until a fetus is viable. Supporters of Roe vs. Wade fear that the inflow of conservative judicial appointments under President Trump could make the reversal of Roe vs. Wade feasible.
Dr. Jamila Perritt, a fellow with Physicians for Reproductive Health, describes the heartbeat legislation as an avenue for conservative lawmakers to limit access to abortion. Perritt asserts, “The likelihood that an individual can miss her period, get a pregnancy test, then make an appointment to see an abortion provider, take time off of work if she’s working, find child care for her other children, get in to get her abortion and have all of that done prior to a six-week time period is absolutely unrealistic and unreasonable… The reality is that it’s justice by geography. Abortion is legal in this country.”
Prior to the heartbeat legislation, Iowa had already implemented a number of restrictions on abortion. In Iowa, abortions after 20 weeks gestation are banned unless the woman’s life is in danger, and public funding is obtainable for abortion only in instances of life endangerment, rape, incest or fetal abnormality. Further, the governor must consent to each Medicaid-funded abortion. Women are also required to receive an ultrasound before to undergoing an abortion, and a pregnant minors’ parents must be informed before the procedure can be executed.
As journalist and women’s activist Robyn Marty observed, “Anti-abortion groups no longer fear that the Supreme Court, given its current and future mix of justices, will uphold Roe if another case makes its way there.” This is certainly the case with the heartbeat bill, which can be seen as experimental case to put the issue of abortion before the Supreme Court, where those who oppose abortion believe a post-Trump court will undo national abortion rights established by Roe vs. Wade.
Numerous organizations, including Planned Parenthood and the American Civil Liberties Union, have already promised to seek legal recourse and sue the state of Iowa. In such instance, the Supreme Court could address the issue in the case of a circuit split, in which two federal appellate courts dispute whether similar laws are unconstitutional. The influx in the number of states that are moving to pass restrictive abortion legislation (and the number of cases that have been brought against these states) under President Trump’s more conservative judicial branch (best represented by Justice Neil Gorsuch), largely increases the chances that a case against the heartbeat legislation will be heard.
Justice Gorsuch’s appointment does not alter the Supreme Court’s balance on abortion, since he would be taking the place of the late Justice Antonin Scalia- a undeviating vote against abortion rights. However, with three justices over the age of 78, President Trump could have the chance to fill additional seats, thus drastically changing the balance of the Supreme Court on abortion and other issues for decades. With this in mind, conservatives advocating for passing the bill believe that in the years it would take to reach the U.S. Supreme Court, President Trump could have appointed the justices necessary to support Justice Gorsuch and overturn Roe.
Hillary Schneller, staff attorney at the Center for Reproductive Rights, remains skeptical that the Supreme Court would even call into question the precedents set by Roe vs. Wade. Schneller claimed, “The composition of the court always changes over time, but the bedrock principle of the rule of law remains stable because the justices are bound by the idea that they have to respect and follow established precedent.”
Regardless of whether or not the heartbeat legislation makes it to the Supreme Court, the issue remains that across the nation, states are moving towards similar restrictive regulations on abortion. For example, Mississippi has recently signed into law the Gestational Age Act, which bans abortion after 15 weeks of gestation and does not allow rape and incest to be considered as grounds for an exception. Elizabeth Renda, women’s media director of the Democratic National Committee, pertinently described this legislation as “nothing but a thinly veiled attack on Iowa women’s most basic rights and freedoms- every woman deserves the fundamental right to make decisions about her own body with her doctor.” Ultimately an endeavor to divest women of their bodily autonomy, Iowa’s heartbeat legislation promises to reignite the debate over the constitutionality of abortion.