From the November-December print edition of the Informer.
Iowa’s previous watershed moment in the battle over abortion rights happened during a period of social change in the early 1970s, as lawmakers and activists appeared to be on the verge of overhauling a law that two decades earlier had resulted in the state Supreme Court upholding a conviction against J. A. Snyder, a Roland physician, for providing illegal abortions. For four years, an emotionally charged battle raged in the state Legislature until, in 1973, the US Supreme Court beat Iowa’s abortion-rights advocates to the punch, ruling in Roe v. Wade that the 14th Amendment’s due process clause afforded women a right to privacy that extended to the choice to have an abortion.
Since that time, Roe’s due process holding has remained the law of the land, but that hasn’t stopped the efforts in recent years of Republicans to chip away at abortion rights here, with mixed results. In 2013, the Branstad-packed Iowa Board of Medicine ruled that doctors could no longer dispense abortion pills without first seeing a patient in person — a decision intended to prevent Planned Parenthood of the Heartland from using a first-of-its-kind video conferencing system for physicians in urban areas to dispense abortion-inducing pills to women in rural Iowa. (As of 2014, 89 percent of Iowa counties, home to 42 percent of the women in the state, had no clinics that provided abortions.) Two years later, in the first abortion case it heard in four decades, the Iowa Supreme Court ruled that the board’s decision was unconstitutional because it placed an “undue burden” on rural women.
In 2017, GOP lawmakers took aim at Planned Parenthood again by preventing the organization from receiving Medicaid funding, forcing the closure of four of its clinics and reducing Iowans’ access to family planning services despite promises to the contrary. Republicans also passed a law banning most abortions after 20 weeks of pregnancy and subjecting women seeking them to a 72-hour waiting period during which they would have to make additional appointments for a mandatory ultrasound and to receive information about other options including adoption. The Iowa Supreme Court struck down the bill’s waiting period provision in June. Before it did, then-Gov. Terry Branstad hailed the new law as one of the “most pro-life bills” passed by the Legislature in decades. “I think that this year was really a banner year for the pro-life movement,” he said. “History was made this session.”
Then, this May, the Republican-controlled Statehouse upped the ante significantly, passing what quickly became known as the strictest law of its kind in the country: a prohibition on most abortions after a fetal heartbeat can be detected, which happens after about six weeks, when women typically aren’t yet aware of their pregnancy. The Iowa Supreme Court, which ordered a temporary halt on the law soon after its enactment to prevent its July 1 implementation date, will likely rule this law unconstitutional as well, as it flouts Roe v. Wade. But, as the law’s supporters have made abundantly clear, this is exactly their aim. They hope an appeal will ultimately reach the US Supreme Court so it can intervene as it did in 1973, only this time to send the country back to a time before abortions were constitutionally protected. “We need to create vehicles that will allow the Supreme Court possibly to reach back and take this case, and to take up an anti-abortion case,” state Sen. Rick Bertrand, a Sioux City Republican, told the New York Times.
The prospect of a new pre-Roe America alarmed supporters of abortion rights even before Supreme Court Justice Anthony Kennedy’s decision in late June to retire, paving the way for Brett Kavanaugh’s confirmation and a decisive conservative court majority. In a Des Moines Register op-ed published a month before Gov. Kim Reynolds signed the fetal heartbeat bill into law, Suzanna de Baca, the outgoing president of Planned Parenthood of the Heartland, warned of a possible return “to the dark days of back-alley abortions — back to women needlessly dying just trying to have some control over their own bodies, lives, and futures.” De Baca recounted personal stories she’d been told of Iowa before Roe: from an elderly Sioux City woman whose mother “lived in poverty in a rural community and attempted a self-induced abortion during her 11th pregnancy,” dying as a result and “orphaning her 10 children”; a retired eastern Iowa doctor who witnessed a young woman who “inserted a kerosene-soaked rag into her vagina in an attempt to end an unintended pregnancy” die as he tried to save her life; a “dear friend” who survived an illegal abortion in the 1960s, a “dangerous and scary experience that wounded emotionally and scarred physically.”
From 1969 to 1972, de Baca added, the Clergy Consultation Service on Abortion, established by pastors and rabbis concerned for the safety of those seeking abortions, referred more than 2,500 Iowa women and girls as young as 11 to states such as New York where abortion was legal and much less dangerous.
Until the following year, Iowa abortion laws — and the extent to which they were enforced — varied considerably over time but were generally relatively lax. In a 1989 article focusing on Iowa’s “abortion battles” leading up to the Roe decision, written for the State Historical Society’s Annals of Iowa publication, University of Oregon professor James Mohr explored the history of the state’s laws on the matter, which originated in 1839 as part of a criminal code passed by the territorial legislature stipulating punishment for poisoning a fellow citizen. In 1843, the body added language criminalizing abortion after “quickening,” the moment when a woman feels a fetus move for the first time, usually after four or five months.
Although a doctor who performed a late-term abortion could be indicted for manslaughter under that law, lawmakers of the era were otherwise “remarkably tolerant” of the practice, Mohr wrote. No sanctions against abortion were added to the Iowa Code when it was established in 1851. Five years later, the state Supreme Court tossed out a slander case against a woman who accused another of self-inducing an abortion, noting “that producing an abortion before the child is quick is not now a crime in Iowa.”
The court’s ruling angered a physician from Keokuk, who wrote a letter to his state senator that demanded an anti-feticide law. He got his wish — sort of — when, in 1858, the Legislature made it illegal to give drugs to or use medical instruments on “any pregnant woman, with the intent thereby to procure the miscarriage of any such woman.” Violators could face up to a year in jail and $1,000 fine, although the difficulty of proving intent coupled with the quickening definition of abortion resulted in the law being used for little more than a means of harassing abortionists. In 1863, the state Supreme Court further ruled that the law could not be used to prosecute a woman for attempting to self-induce an abortion, and 10 years later Iowa’s secretary of state told the Legislature there were no abortion-related convictions on the books over the past two years.
“The overall result of these early abortion-related laws and decisions created in Iowa a sort of benign neglect toward the practice,” Mohr explained. “Abortions early in pregnancy were tolerated, and the practice was almost certainly widespread in the state by the 1860s.” Although there are no statistics specifically for Iowa available for the era, a report prepared in 1871 for the Iowa State Medical Society claimed that the state was keeping up with national trends, which estimated the abortion rate to be as high as one in every four or five pregnancies.
Until 1878, anti-abortion efforts around the country led by doctors representing state and national medical societies had little impact in the state. That year, the Iowa Supreme Court upheld a conviction under a law passed five years prior allowing for the prosecution of abortions performed before quickening, beginning a period of slightly lessening tolerance. In 1882, anti-abortion lobbyists convinced state lawmakers to increase the maximum penalty for performing an abortion to five years in jail. Four years later, the Iowa Supreme Court ruled that a death resulting from a botched abortion would be considered second-degree murder.
But even though that ruling remained in effect for decades to come, subsequent court rulings made the practice of abortion itself more of a legal gray area, and it remained common in the state. (Through the late 1920s, Iowa’s high court consistently ruled that women had the right to an abortion when their lives were at risk, which further complicated the ability of authorities to press charges.) Although technically illegal, abortions were done with little secrecy and providers seldom hearing from police unless a patient died. A survey conducted in 1931 by the physician E. D. Plass, who was researching the prevalence of abortions in rural areas, reported that 81 Iowa doctors had witnessed more than 6,000 abortions between them, the vast majority illegal but unprosecuted.
The criminal but tolerated status of abortion in Iowa persisted until 1953, when the state Supreme Court upheld the conviction of J. A. Snyder, the abortion provider from Roland, even after all but one of the 15 women prepared to testify against him withdrew because they were refused legal immunity and had all received abortions from the doctor. “Delivered in a climate of conservative politics and in a period of resurgent domesticity,” Mohr wrote, “the decision presaged an era when abortions might become difficult to obtain, even for sophisticated women with access to friendly and well-paid physicians, let alone for poor or desperate women.”
The ruling against Snyder helped set the stage for the legislative battle over abortion rights in Iowa in the years leading up to Roe v. Wade. During the following decade, a general consensus emerged that abortions performed in the early stages of pregnancy should not be criminalized, and in 1967, state Sen. John Ely, a Cedar Rapids Democrat, introduced a bill to stipulate that by law. The bill died, in the process sparking what Mohr described as “one of the most tumultuous and emotional battles in Iowa political history.”
In the years to follow, advocates for legalizing abortion from both sides of the political aisle, key among them state Sen. Willa Charlene Conklin, a Waterloo Republican, were repeatedly thwarted but coming ever closer to achieving their goal until the US Supreme Court did so for them in 1973.
By January 1971, a clear majority favored liberalizing the state’s abortion laws, according to the Des Moines Register’s Iowa Poll. Mohr cited several interesting factors for this shift in public perception, not all of which are the same that resonate today. The most familiar arguments were about how abortion could safeguard a woman’s health and the disproportionate impact of criminalization upon the poor.
A third factor was a sign of the times. By the mid-’60s, polls showed that the vast majority of physicians favored reforming their states’ laws against abortion. This was a significant attitude shift for the profession, which was much better positioned financially than it had been in decades past, when doctors tended to support laws against abortion that targeted midwives and other business competitors.
One of the most predominant arguments in the early ‘70s for legalizing abortion, according to Mohr, was population control. This was also largely a product of that era. In the previous decade, President Lyndon B. Johnson’s administration had devoted significant resources to federal studies on controlling fertility. To bolster her case at the Statehouse for abortion reforms, Conklin carried with her copies of a special address Johnson’s successor, Richard Nixon, delivered to Congress in 1969 titled “Relative to Population Growth.” She was also fond of an article that Congressman Mo Udall, an Arizona liberal, penned for the Arizona Republic, called “On Spaceship Earth: Standing Room Only.” Meanwhile, as the abortion debate raged on in the state Legislature, organizations including local chapters of the national Zero Population Growth submitted letters to the editors of newspapers across Iowa to make their case for population stabilization.
A final, crucial factor for the abortion rights movement during the same period was a emergent feminist movement, which in Iowa adopted the issue as its central cause. As Mohr noted, the majority of letters sent to state lawmakers in favor of abortion rights were written by women — unusual for the time — and, he wrote, the authors “poured out private stories in great detail,” telling Conklin specifically “things they had never dared to tell their husbands.” Soon, women’s organizations like the YWCA joined the cause.
Strikingly, Iowa’s Republican governor then, the late Robert Ray, played a role opposite that of his contemporary counterpart Kim Reynolds, who has touted her support for the state’s strictest-in-the-nation abortion ban as a key plank in her 2018 bid for a full term in the governor’s mansion against Fred Hubbell, her Planned Parenthood-backed Democratic rival. In 1969, Ray appointed his Commission on the Status of Women, whose members — with the exception of one dissenter, a nun — strongly backed reforming Iowa’s abortion laws, which they criticized in an official report as “antiquated and restrictive.” A woman, the commissioners concluded, “is a free being and as such has a right to control her own life, her own property, and her own physical being.”
While Ray and Reynolds have proven to be a study in contrasts, the views of Iowans on the abortion issue then and now is not. Similar to its findings in 1971, an Iowa Poll published by the Register in early October showed that a majority — 54 percent — believe that abortion should be legal in most if not all cases, compared to 39 percent who say it should usually or always be illegal. (Ten years prior, another Iowa Poll showed a more even 48-to-46 percent divide on the issue.) The October poll also found that 52 percent of Iowans believe the state’s new fetal heartbeat law is too harsh, as opposed to 39 percent who support it.
Nonetheless, it was Republicans who controlled the state government in 2018, allowing the party to push through key elements of a sweeping right-wing agenda focused on both fiscal policy matters like massive, billion-dollar tax cuts and social issues, chief among them the abortion ban.
“I understand and I anticipate that this will likely be challenged in court, and that courts may even put on hold a law until it reaches the Supreme Court,” Reynolds acknowledged in early May when she signed the latter bill into a law that the state’s high court soon halted. “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.”
Far from it — with an assist from Senate Judiciary Chairman Chuck Grassley, who prevented Obama Supreme Court nominee Merrick Garland from even receiving a hearing before shepherding through two staunchly conservative Trump appointees poised to transform the high court for a generation — Iowa Republicans could now end up becoming the central players in the right’s decades-long effort to undo Roe v. Wade.
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