The following message was emailed to the 85 or so Republicans in the Iowa Legislature about 10 am, May 2, 2018, after they had debated a “heartbeat bill” into the wee hours and finally passed it. The House finally passed it about 11 pm, and the Senate waited up so they could finally pass the amended version (the Senate had passed it some time earlier) at 2:30 am.
The Des Moines Register reports that “ Senate File 359, if signed into law, would ban nearly all abortions after a fetal heartbeat is detected. That can occur about six weeks into a pregnancy and often before a woman realizes she’s pregnant. …[which will] all but guarantee a protracted legal battle.)
Congratulations! You have given Iowans news worth waking up to!
You have taken the first step which, if you follow through, will save thousands of lives, and lead our nation in saving millions.
You have done what the 14th Amendment to our U.S. Constitution required you to do long ago, ever since it became not just clear to everybody but legally recognizable – legally “established” by all five categories of court-recognized “finders of facts” (juries, expert witnesses, states, Congress, and judges) – that constitutionally protectable “life begins” at conception/fertilization.
That is not even controversial: not one American legal authority which has taken a position on when protectable “life begins” has ruled that is any later than conception. It is unanimous. Roe v. Wade said it is obvious (“of course”) that when “this suggestion of personhood is established, the case [for legal abortion], of course, collapses, for the right to life would then be guaranteed specifically by the [14th] Amendment.” No court ruling since then has said it no longer matters if abortion is, in fact, murder, or that it is no longer obvious that courts can’t deliberately legalize genocide without undermining the very reason for their own existence.
Yet you know the next step: a court challenge by judges who have not considered these facts, and who will most likely not be asked to address these facts by the state’s defense. The uncertain outcome leaves prolifers sitting on their hands and watching helplessly. Because if you have a legal strategy for court-proofing your law, the prolife legislators I’ve talked to haven’t heard of it.
Rather than trust Attorney General Tom Miller (remember when he ran for governor as a prolife Democrat?) to defend the unborn, I pray you will authorize your own legal team. And I pray you will equip your team with legal arguments at least as strong as those in the Simple Resolution posted here Or here a model appeal brief.
I pray also that you will not stop at authorizing a legal team to apply these irrefutable arguments in defense of the unborn, but that you will prepare yourselves for the third step – the very likely event that even facing irrefutable arguments which judges cannot squarely address without outlawing abortion, judges will rule in violation of the Constitution, becoming guilty of “acting without authority” and of “abusing power”, which are part of the definition of “malfeasance in office”, an impeachable offense under the Iowa Constitution. The Iowa Constitution also provides “no person charged with the exercise of powers properly belonging to one of these departments shall exercise any function appertaining to either of the others”, another criteria by which judges “act without authority” who invalidate constitutional laws.
I have been often warned about making my letters too long, which I fear this already is, so I am afraid to lengthen this with legislation with which the Iowa legislature can tame its courts. But please contact me if you would like to see it. If lawmakers begin discussing these ideas about the time your heartbeat law is being reviewed, that could help encourage judges to more seriously address the legal argument before them, and save thousands of lives.
The introduction of my proposed Simple Resolution next January, and the public education that would initiate, while courts continue holding up your heartbeat law, would also help prepare the public to support measures to drag judges back to their constitutional sphere of authority.