ABORTION remains America’s most incendiary wedge issue. According to the most recent Gallup poll, 49% of Americans consider themselves pro-choice, while 46% say they are pro-life. Those numbers haven’t changed much in the past two decades, and the Supreme Court’s abortion-rights ruling in Roe v Wade, 45 years on, continues to serve as a lightning rod. States began nipping at Roe soon after it came down, and in 1992, the justices upheld several abortion regulations while extending Roe’s core promise to permit women to end their pregnancies up to the point of fetal viability, or about 24 weeks’ gestation. In recent years, challenges to Roe have become more brazen, with states passing 20-week, 15-week and 11-week abortion bans, many of which have faced trouble in court for violating the right protected by Roe.
Some states are going even further. This week, a few years after an ill-fated attempt in North Dakota, the Iowa legislature passed a bill banning abortion when a fetal heartbeat can be detected via a transvaginal ultrasound. In most cases, this point comes around six weeks, when the fetus is about the size of a pea and many women are not yet aware they are pregnant. Republicans rushed the bill through to a vote in two days. It passed the Iowa House 51-46 and cleared the Senate in the wee hours of May 2nd by a 29-17 vote.
If the Republican governor, Kim Reynolds, signs the bill, Iowa will have America’s most restrictive abortion regime, with nearly all abortions precluded by the ban and only limited exceptions for women whose lives are threatened by their pregnancies, whose fetuses have abnormalities “incompatible with life” or who report (within time constraints) that they conceived through rape or incest. Will the governor sign it? Based on her previous comments, including a claim that abortion is “equivalent to murder”, it seems likely. Laura Belin, publisher of Bleeding Heartland, an Iowa politics website, would be “shocked” if Ms Reynolds vetoes the bill. “She has repeatedly proclaimed herself to be ‘pro-life’,” Ms Belin said, and in an election year, “I can’t imagine her enraging social conservatives by blocking” the bill. It would also be odd, she noted, for Linda Upmeyer, the House Speaker, to go to the effort of securing the votes for the measure to pass if Ms Reynolds had no intention of signing it. The governor and the Speaker are “close allies”, Ms Belin said.
In the House and Senate floor debates, the bill’s defenders sometimes seemed poorly versed in several of its key details; they could not explain why, for example, it lacked a provision protecting doctors who perform abortions from legal jeopardy. They were clearer about the longer-term strategy underlying the bill. Fully aware that it contravenes the heart of Roe, all but five of Iowa’s Republican legislators hope to expedite a legal challenge to the fetal-heartbeat threshold, which comes 18 weeks before the point at which the Supreme Court says a woman’s right to choose can be curtailed. The plan is to lose a few battles but possibly win the war: let the bill be struck down in district and circuit courts as unconstitutional but give the Supreme Court the final word, and hope five justices are interested in taking an opportunity to overturn Roe v Wade.
With talk of Justice Anthony Kennedy, 81, who has been friendly to abortion rights, possibly leaving the bench this summer, conservatives are considering the possibility that a solid five-justice conservative majority could, if the right case reaches it, rethink or revoke Roe. But it would probably take at least one additional Donald Trump appointee to have a shot at erasing Roe from the law. John Roberts, the chief justice, is no fan of abortion and has voted to permit states to regulate it in significant ways. Still, his institutionalist bent and relative moderation suggest he would be loth to upend a right several generations of American women have come to rely on. On the other hand, Justice Clarence Thomas has written that Roe was wrongly decided; Justice Samuel Alito and Justice Neil Gorsuch seem solidly in that camp, too. So if Mr Trump has the opportunity to seat two more conservative justices, the risk of abortion rights disappearing is real.
But Ms Belin suggests that Planned Parenthood, an inevitable plaintiff that will challenge Iowa’s ban, may have a trick up its sleeve. As it has in other abortion litigation, Planned Parenthood may file suit in state court, not federal court. If the state court system agrees with Planned Parenthood and bases its defence of legal abortion on a right in the Iowa state constitution—perhaps the line that “all men and women” have “inalienable rights” including “obtaining safety and happiness”—the United States Supreme Court would have no authority to reconsider that. The justices have the final word only on the meaning of the federal constitution; states’ respective high courts are the final interpreter of their state laws and state constitutions.