Iowa state Sen. Jason Schultz said he will take to the next state legislative session a bid to define life as beginning at conception following a June 27 U.S. Supreme Court decision that limits how much states can restrict abortion access.
The ruling, in Whole Women’s Health v. Hellerstedt, tossed regulations in Texas requiring doctors to have admitting privileges at nearby hospitals and clinics to meet the standards of ambulatory surgical centers.
Schultz, R-Schleswig, argued that abortion would be illegal if a fetus was defined as a person under Iowa law.
“The Supreme Court decision reinforced that incrementally ending abortion is impossible,” Schultz said. “You either have it or you don’t.”
The only viable option, he said in an IowaWatch interview, is to declare personhood for a child in the womb so he or she has constitutional protection of right to life.
But the constitutionality of any legislation along those lines would be contrary to previous Supreme Court decisions, Mark Kende, director of Drake University’s Constitutional Law Center, said.
“He can try to pass that legislation but it certainly wouldn’t trump the federal Constitution,” Kende said. “Even if that language got into the state constitution it can’t defy three Supreme Court decisions in the last 40 years.”
Roe v. Wade declared a constitutional right to abortion in 1973. The Whole Women’s Health case was seen by supporters of legal abortion as an attempt to place an undue burden on women trying to legally exercise that right.
Schultz said outlawing the practice outright is the only way to ensure an effective end of abortion. “Personhood is defining abortion as illegal as opposed to regulating or restricting the practice,” he said.
Schultz said he wants to work with his Republican colleagues to pass a bill through the Iowa Legislature defining life as beginning at conception by guaranteeing personhood rights to the unborn.
A bill filed in the House in 2015 – HF115 – aimed to do so by creating a new section in the criminal code identifying fetuses as people whom crimes could be committed. The bill was sent to committee but never taken up.
In Roe v. Wade, the Supreme Court rejected Texas’s claim that a fetus is a person within the language and meaning of the Constitution. The majority decision in Roe states “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn” therefore the rights of a person do not extend to the unborn.
Schultz’ approach, as he describes it, would work around that restriction, relying on the Court’s observation that a fetus’ right to life would be guaranteed by the Fourteenth Amendment if personhood is established.
“If this suggestion of personhood is established, the case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment,” Roe v. Wade states. “No case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.”
Attempts to pass Schultz’s legislation would be tough. It would have opponents both inside the and outside the Statehouse. Moreover, a legal question exists: can a state Legislature decide the legality of abortion when the U.S. Supreme Court already has ruled on it?
Kende called Schultz’s idea a misunderstanding of the entire legal system. Moreover, he said, he finds the proposal troubling coming from an elected official.
“They are entitled to their own passions, but they can’t disregard the law,” Kende said. “What’s also concerning is that they took an oath of office.”
Rachel Lopez, a spokeswoman for Planned Parenthood of the Heartland, said bills like one Schultz proposes are introduced routinely in Iowa and fail to gain traction.
“Although we have not yet seen the details of this impending effort, we are confident that it also will fail to advance,” Lopez wrote in an email. “Personhood bills are a waste of both time and taxpayer dollars, as they have failed time and again in Iowa and other states.”
LEGISLATIVE ATTEMPT TO KILL
TELEMEDICINE ABORTION FAILED IN 2016
A move to ban the telemedicine abortions, in which doctors can guide the use of abortion pills by women in a different location, died in the Iowa Legislature in March. Iowa is one of three states able to use telemedicine for medication abortions. State Republicans have tried and failed for at least three years to end that practice.
A bill came up in the Iowa House of Representatives this year – called House File 2084 – to counteract a 2015 Iowa Supreme Court decision that essentially guaranteed Iowa women the right to abortions.
The bill died because no committees picked it up. “HF 2084 is dead, forever, as the deadline for committees to consider bills was in March,” said Rep. Kevin Koester R-Ankeny. “This bill was never taken up on committee this year.”
The bill could have banned telemedicine abortions, a type of abortion only legal in Minnesota, Maine and Iowa. This procedure is the remote distribution of abortion pills by a certified physician. A physician verifies the patient’s examination by clinic staff and oversees the administration of medication from offsite.
Planned Parenthood of the Heartland is the only provider in Iowa performing telemedicine abortions.
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This IowaWatch story was republished by The Council Bluffs Nonpareil under IowaWatch’s mission of sharing stories with media partners.