Last Friday, Iowa Gov. Kim Reynolds (R) gave both middle fingers to the Supreme Court of the United States.
A new law, signed by Reynolds, effectively bans abortions around the sixth week of pregnancy — before many people are even aware that they are pregnant. It’s a cartoonish attack on the right to choose, the kind of legislation by blunderbuss that rarely ends well for policymakers.
It’s the sort of law a governor signs if they want to slap the justices in the face and dare those justices to slap back.
As recently as 2016, the Supreme Court reaffirmed that states may not enact a law restricting abortion “if the ‘purpose or effect’ of the provision ‘is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Iowa’s six-week abortion ban takes effect long before a fetus becomes viable (even especially optimistic studies indicate that a fetus is unlikely to survive outside of the womb without 22 weeks of gestation). And Iowa’s new law does not simply “place a substantial obstacle” before patients seeking an abortion — it forbids abortion outright for most patients with pre-viable pregnancies.
Iowa’s new law closely maps a similar ban enacted by North Dakota in 2013. Notably, that law was struck down by a panel of three Republican appointees to the United States Court of Appeals for the Eighth Circuit — the same circuit that oversees Iowa — so the Iowa’s new ban should have no legal legs to stand on when it arrives in court.
A six-week ban is not the sort of law a governor signs if they have any interest in complying with Court decisions. It’s the sort of law a governor signs if they want to slap the justices in the face and dare those justices to slap back.
The end of subtlety
When it comes to legal strategy, abortion opponents used to be devilishly clever.
In 2013, Texas lawmakers enacted HB 2, an anti-abortion law imposing expensive requirements on abortion facilities and strict credentialing requirements on abortion providers. The genius of HB 2 is that it did not look like an abortion ban. It looked like an ordinary health regulation, something disingenuous lawmakers could sell as an effort to make abortions safer — even as their law shut down the overwhelming majority of abortion clinics in Texas.
Texas lawmakers bet that, by dressing up their abortion ban up as something else, they could convince the Supreme Court to play along with this sham. Had the Court agreed to play this game, it could have been the effective end of the right to choose, as states would have gained the power to make it so expensive to operate an abortion clinic that no clinic could survive.
But, of course, Texas’ gambit did not prevail. In Whole Woman’s Health v. Hellderstedt, Justice Anthony Kennedy crossed over to vote with the Court’s four liberals. For the moment, at least, the right to choose was saved.
Viewed in light of this history, Iowa’s decision to enact such a blatant attack on the right to obtain an abortion is a bit odd. If the Supreme Court wasn’t willing to nuke abortion rights when given a way to do it with plausible deniability, why would anyone expect them to strike down what remains of Roe v. Wade when faced with such a transparent attack on the right to choose?
And yet there’s also something liberating about having the Supreme Court of the United States tell you that they won’t let you get away with blatant trickery. If the Court won’t play along when abortion opponents lie about what they are up to, then these opponents might as well tell the truth.
Iowa’s six-week abortion ban doesn’t pretend to be anything other than what it is. And that could prove to be a winning strategy for Roe‘s antagonists.
Stacking the deck
If abortion opponents had no viable path to get to five votes on the Supreme Court, this entire discussion would be academic.
But Donald Trump is fast remaking the courts in the conservative Federalist Society’s image. Neil Gorsuch occupies a seat on the Supreme Court, bringing with him an almost certain vote against women’s reproductive rights. And Iowa’s abortion ban will be heard by the most Republican-dominated federal appeals court in the country.
Republican appointees hold ten of the eleven active judgeships on the United States Court of Appeals for the Eighth Circuit. One of Trump’s recent appointments, Judge Steven Grasz, was deemed “not qualified” to serve as a judge by the American Bar Association, in part due to concerns that Grasz would ignore the Supreme Court’s abortion decisions in order to uphold laws restricting reproductive choice. And Trump’s already named a total of three judges to this court.
So there is no guarantee that the Eighth Circuit will faithfully apply the Supreme Court’s abortion precedents when it hears a challenge to Iowa’s six-week ban. Even after the Eighth Circuit’s decision striking down North Dakota’s abortion ban, the court’s newly Trumped up majority may now have the votes it needs to uphold Iowa’s law.
If past is prologue, moreover, such a challenge may not reach the Supreme Court for a few years — Texas’ HB 2 became law in 2013, but it was not struck down by the justices for another three years. In that amount of time, the membership of the Court can change. The 81-year-old Justice Kennedy could make good on rumors that he plans to retire, or one of the Court’s elderly members could no longer be able to serve.
If that happens, and if Trump manages to appoint someone like Gorsuch to fill the new vacancy, Iowa’s abortion ban could provide an ideal vehicle for the Supreme Court to wipe away all that remains of Roe v. Wade.