Iowa Republicans are hoping their new law banning abortion after six weeks lands in the Supreme Court, but experts say it’s not clear the fight will get that far, and say it might first require a shift in the court’s composition.
Iowa Gov. Kim Reynolds, a Republican, signed the “heartbeat” bill this month. The legislation outlaws abortion after the point at which a heartbeat is detected, which is typically six weeks.
The Iowa law is the most restrictive abortion measure in the country, and it drew an immediate legal challenge from Planned Parenthood and the ACLU of Iowa.
For some supporters of the law, that move is exactly what they had been hoping for, as conservatives have set their sights on challenging Roe v. Wade, the 1973 landmark Supreme Court decision that legalized abortion.
“The first thing I think we need to realize is that this bill was put in place really to challenge the Supreme Court. I think that’s what it is,” Iowa state Sen. Rick Bertrand, a Republican, told Fox News. “There’s a lot of us in the pro-life movement that understand that life at conception is where life begins and really to force this back to the Supreme Court. We need that type of legislation in the pipeline.”
But legal experts warn the path to the Supreme Court is unlikely to be an easy one.
Planned Parenthood’s lawsuit was filed in state court in Des Moines and raises claims under the state constitution, which creates a roadblock for anti-abortion advocates. If the case proceeds to the Iowa Supreme Court, and that court decides the law violates the state constitution, it would likely mark the end of the line, said Paul Gowder, a professor who teaches constitutional law at the University of Iowa College of Law.
“If the Iowa Supreme Court does that, the U.S. Supreme Court would not review it,” he told the Washington Examiner.
But if the state supreme court issues a ruling relying on federal law, Gowder says “there’s a chance” the U.S. Supreme Court weighs in.
Steven Aden, chief legal officer and general counsel for Americans United for Life, said the chances are slim. He noted that Iowa sits in the 8th U.S. Circuit Court of Appeals, which in 2015 struck down a heartbeat bill passed by the North Dakota legislature. That blocks off a potential path to the Supreme Court if the case sees the inside of a federal court at all.
“I wouldn’t be optimistic about the prospects of the Iowa bill making its way up to the U.S. Supreme Court,” he told the Washington Examiner.
One obstacle has to do with the composition of the Supreme Court. All five justices who were in the majority in the Supreme Court’s 2016 ruling in Whole Woman’s Health v. Hellerstedt, in which the court overturned a Texas law requiring a doctor performing an abortion to have admitting privileges at a hospital with 30 miles of the clinic, remain on the court.
That group is made up of Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, Elena Kagan, and Anthony Kennedy, the court’s swing vote. Kennedy also joined the majority in a 1992 case, Planned Parenthood of Southeastern Pennsylvania v. Casey, which reaffirmed a woman’s right to an abortion and put limits on state abortion restrictions.
That means a majority of the court is unlikely to accept a case challenging Roe v. Wade, which explains why Gowder thinks a vacancy is needed first.
“The Supreme Court in its current composition has shown no indication of any desire to [accept a challenge to Roe],” Gowder said. “Hellerstedt wasn’t that long ago, and the court’s composition hasn’t changed in any meaningful way in terms of the balance of the court.”
But rumors are circulating that Kennedy might retire at the end of its term in June, but he hasn’t given any indication that will happen.
If Kennedy were to step down this year, the anti-abortion movement could see the court’s ideology shift decisively to the right when President Trump names a replacement. That shift could result in a more sympathetic view to the idea of overturning Roe.
“The courts play a huge role in how abortion policy is shaped in this country,” Elizabeth Nash, the senior state issues manager for the Guttmacher Institute, told the Washington Examiner. “Already there are a couple dozen cases challenging abortion restrictions pending in the courts. Some of them could wind up before the U.S. Supreme Court if the makeup is changed, and if it becomes more conservative, any one of those cases could undercut abortion rights.”
Several other states have passed laws that restrict access to abortion. Mississippi Gov. Phil Bryant, a Republican, signed a bill in March banning abortion after 15 weeks.
The Center for Reproductive Rights immediately filed a lawsuit in federal court on behalf of the state’s only abortion clinic, and a federal judge temporarily blocked the measure from taking effect.
Aden, with Americans United for Life, said Mississippi will “vigorously defend” the 15-week ban in court, but said “the question is whether the 5th Circuit will find a basis for approving that bill within the regime of the ruling in Casey.”
“Certainly, there will be a challenge,” he said. “I think it will be difficult for the state unless there is a sea change in Supreme Court personnel or jurisprudence.”
For abortion opponents with their eyes on Roe, a challenge to a 2015 Arkansas law could provide a window into where the justices stand on abortion. The law requires physicians who conduct medication abortions to have a contract with a doctor with hospital admitting privileges.
Planned Parenthood Great Plains challenged the measure, but the 8th Circuit reversed a lower court’s blockade that prevented its enforcement.
The group appealed to the Supreme Court, saying the 8th Circuit’s ruling “flouts” the high court’s decisions in Casey and Whole Woman’s Health v. Hellerstedt. The appeals court’s order was put on hold pending the Supreme Court’s review.
On Thursday, the justices were scheduled to discuss during their private conference whether to take up the case.
“It’s important to watch the Arkansas case,” Nash said. “That’s the next indicator of what the court thinks about Roe.”
