GOP hopes a challenge to Iowa's abortion bill will overturn Roe v. Wade. How would that work?

Stephen Gruber-Miller | The Des Moines Register

Show Caption Hide Caption What does the 'fetal heartbeat' law mean for Iowa? The law, which goes into effect on July 1, will require physicians to conduct an abdominal ultrasound to test for a fetal heartbeat on any woman seeking an abortion. If a heartbeat is detected, a physician cannot perform an abortion.

DES MOINES – Iowa Republicans took a step toward passing the strictest abortion ban in the nation Wednesday — one that everyone agrees would end up in court if it becomes law.

But which court?

Iowa lawmakers passed a bill early Wednesday, advancing the legislation to Republican Gov. Kim Reynolds.

Republicans said they hope their law will face a legal challenge so it can advance to the U.S. Supreme Court. Their goal is to overturn the 1973 landmark case Roe v. Wade, which established that women have a constitutional right to an abortion.

The Supreme Court has declined to hear similar cases in recent years. But as states continue to pass legislation restricting abortions and President Trump appoints more conservative federal judges, such as Supreme Court Justice Neil Gorsuch, abortion opponents are increasingly optimistic.

More: Iowa lawmakers pass nation's most restrictive abortion bill

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"The science and technology have significantly advanced since 1973," said the bill’s floor manager, GOP state Rep. Shannon Lundgren. "It is time for the Supreme Court to weigh in on the issue of life. It has taken decades for the science to catch up to what many have believed all along: that she’s a baby."

What would it do?

The legislation would ban most abortions after a fetal heartbeat is detected, at about six weeks into a pregnancy — often before many women even know they’re pregnant.

Groups that have challenged other abortion restrictions in Iowa, such as Planned Parenthood of the Heartland and the American Civil Liberties Union of Iowa, have decried the bill as unconstitutional, foreshadowing an all-but-certain lawsuit.

Democrats on Tuesday urged their Republican colleagues to reconsider the bill, which they said will drive some women to seek out-of-state abortions and others to seek out more dangerous methods of terminating a pregnancy.

"All women, regardless of age, income or race, should be able to obtain reproductive health services, including abortion, free from political and economic barriers," said Democratic Rep. Beth Wessel-Kroeschell.

The bill previously did not include any exceptions to the ban in cases of rape or incest. Republicans amended the bill Tuesday to include those exceptions.

'A case in the pipeline'

Conservatives' argument for passing a law now is that by the time it reaches the U.S. Supreme Court — which could take three or four years — Trump could potentially have appointed another one or two justices who could bolster Gorsuch and overturn Roe.

Several national groups are gearing up for a fight to replace Justice Anthony Kennedy, who legal experts speculate could retire as soon as this year. Kennedy, who was nominated by President Ronald Reagan, has voted in favor of abortion rights in key cases.

In the meantime, Trump continues to appoint federal judges to lower courts "and all the other justices have gotten three years older," said Martin Cannon, a senior counsel for the Thomas More society, a national law firm that defends abortion restrictions and religious freedom laws around the country.

"There’s a real decent chance that we’re going to wind up with another justice or two to tilt the balance a little bit, and we need to have a case in the pipeline," he said.

'How insulting to the women of Iowa' Suzanna de Baca, then-president and chief executive officer of Planned Parenthood of the Heartland, speaks to legislators and community members during a public hearing on SF 359, the fetal heartbeat bill being considered in the Iowa House.

Opponents of Iowa’s legislation say it clearly violates long-standing legal precedent, beginning with the Roe decision, that has found women have a constitutional right to an abortion before viability.

The fact that the Supreme Court upheld the right to an abortion in several cases over the years makes it extremely unlikely it will reverse course, said Hillary Schneller, a staff attorney for the Center for Reproductive Rights, a national organization that has filed legal challenges to abortion restrictions in other states.

"The composition of the court always changes over time, but 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," she said.

What could persuade the Supreme Court to hear a heartbeat challenge?

The last time the Supreme Court had the chance to hear a challenge to a heartbeat law, it declined to do so.

In 2016, the court rejected requests to hear challenges to a fetal heartbeat law in North Dakota and a 12-week abortion ban in Arkansas. The Supreme Court’s refusal left in place lower court rulings that blocked those laws.

"In a way, it’s just too easy a case," said Paul Gowder, a law professor at the University of Iowa who teaches constitutional law. "The Supreme Court very rarely chooses to weigh in on cases that are easy with respect to its prior case law."

The 8th U.S. Circuit Court of Appeals struck down the North Dakota law in 2015. The federal appeals court sits one step below the Supreme Court and has jurisdiction over Iowa cases. Trump has appointed three new judges to that court since its decision in the North Dakota case.

'What about the baby?' Tom DeLay, former majority leader in the U.S. House of Representatives from Texas, speaks to legislators and community members during a public hearing on SF 359, the fetal heartbeat bill being considered in the Iowa House.

One scenario that could cause the Supreme Court to take up a heartbeat law would be a circuit split, in which two federal appellate courts disagreed about whether similar laws are unconstitutional. Chuck Hurley, chief counsel for the Family Leader, a faith-based group that opposes abortion, believes this will happen. "There’s going to be a circuit split. We don’t know when, I don’t know which panel, but Roe is a tattered mess from the day it was signed," he said.

But the fact that the 8th Circuit, a relatively conservative federal court, has refused to uphold a heartbeat law illustrates the challenges facing this approach. Lower courts are bound by Supreme Court precedent.

"They’re judges; they’re not politicians," Gowder said. "It would be extremely surprising, essentially, for an appellate court to uphold one of these bills."