Just a few weeks ago, Iowa passed the most restrictive abortion ban in the nation since Roe v. Wade. Although it does contain several exceptions, the law generally bars doctors from performing abortions after the baby's heartbeat can be detected, which is usually around six weeks.
If you're thinking that this law directly conflicts with Roe v. Wade and subsequent Supreme Court decisions dealing with abortion, you are right. And that is precisely the point. Republican Iowa lawmakers who supported the measure have been totally transparent about their aim to use this law to put the abortion issue back in front of the Supreme Court. They hope that a more conservative slate of justices will finally see fit to reverse Roe and its progeny.
Iowa Gov. Kim Reynolds is fully on board with this plan. She said, "I understand and I anticipate that this will likely be challenged in court. … However, this is bigger than just a law. This is about life. And I'm not going to back down from who I am or what I believe in."
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As we all know, however, the high court is never keen to reverse landmark decisions. Rarely does it do so simply because it determines that an existing precedent was decided in error. But if states were to actually change the factual-legal context in which Roe was decided, they could provide the court with a solid legal basis – beyond the already-firm moral and philosophical one – to reverse its disastrous line of abortion precedents and send the whole issue back to the states.
And in fact, states do have an opportunity to change the legal analysis of an abortion ban in such a way as to change the outcome. It presents itself in the form of a gaping, "person"-shaped hole in Roe v. Wade.
What many people don't know is that in that case, the Supreme Court's holding that the "right of privacy is broad enough to encompass a woman's decision whether or not to terminate her pregnancy," was not the end of the story. The court then had to address the state's argument that the unborn baby was a "person" within the meaning of the 14th Amendment, and that the Constitution therefore protected his/her "right to life." The high court specifically stated, "If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment."
Unfortunately, the state failed to make its case that the unborn baby was a "person" within the meaning of the U.S. Constitution. While the state's attorney sought to rely on the scientific facts of human reproduction, the court claimed it was looking for evidence that a pre-born human being was a "person" in the legal sense; not just a living human being, in the scientific sense. This may seem a bit silly to most of us, but we must remember that our courts have, at various times, taken the position that corporations are legal "persons" and that certain races of human beings are not.
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The way for the states to change the factual-legal framework of the abortion issue is to explicitly recognize all living human beings as legal "persons," from conception until natural death. In other words, the states need to provide the "evidence" the court failed to find in 1973 – that the unborn baby has a discrete set of rights to be balanced against the mother's right of privacy.
This is not a novel idea. The state of Missouri, for instance, has a statute declaring that life begins at conception and that unborn children have "protectable interests in life, health, and well-being." The new Iowa law puts a toe into this same water, defining "unborn child" as "an individual organism of the species homo sapiens from fertilization to live birth."
To provide the Supreme Court with the strongest possible basis for reversing Roe, these states should go the next step, premising abortion bans upon their legal recognition of the personhood – and basic human rights – of the unborn. This is logical, just and right.
As Gov. Reynolds signed the new law into effect, protesters outside chanted Iowa's state motto, "Our liberties we prize, our rights we will maintain." But in a conflict between their own "liberties" and another, weaker person's most basic right – the right to life – which will they "maintain"? Collectively making the proper choice at that juncture is the very basis for any free, humane and civilized society.