Iowa Senate Republicans advance new 72-hour abortion waiting period after previous version struck down in court

Republicans in the Iowa Senate revived a 72-hour waiting period requirement to receive an abortion similar to a law found unconstitutional by the Iowa Supreme Court two years ago.

The Iowa Supreme Court struck down another 72-hour waiting period requirement in 2018 in a landmark decision that also found that the Iowa Constitution protects the right to an abortion.

The new bill, which advanced through a Senate subcommittee on Tuesday, would reestablish the waiting period requirement. It would also add additional steps to the requirement under current law that women get an ultrasound before they can have an abortion.

Supporters of the proposal said they want to give women time to make an informed decision about whether to have an abortion. Critics accused Republicans of trying to pass an unconstitutional law.

"It’s something I’m very passionate about," said the bill's sponsor, Sen. Brad Zaun, R-Urbandale. Zaun described himself as "pro-life" and said he was disappointed in the state Supreme Court decision. 

Last week, the Republican-controlled Iowa Senate approved putting a constitutional amendment on Iowans' ballots that, if approved, would state that the constitution "shall not be construed to recognize, grant or secure a right to abortion or to require the public funding of abortion." The amendment, if enacted, would overturn the Supreme Court decision. But the process of amending the constitution takes years.

"I'm not patient," Zaun said, explaining why he filed his bill this year rather than waiting for the amendment process to take its course.

If a new waiting period is signed into law and challenged in court, the case could be heard by a very different Iowa Supreme Court than the one that overturned it in June 2018. Since the previous case was decided, Republican Gov. Kim Reynolds has appointed three new justices to the seven-member court and will soon appoint a fourth. By the time a potential lawsuit over the bill could reach the court just one of the five justices in the majority two years ago will still be serving on the court.

Zaun said the court's new composition was "absolutely" a factor in his decision to file the bill.

"I mean, there's different people that are sitting on our Supreme Court now," he said in response to a reporter's question.

The bill advanced through a Senate subcommittee Tuesday with Sens. Zach Whiting, R-Spirit Lake, and Jason Schultz, R-Schleswig, in favor, and Sen. Janet Petersen, D-Des Moines, opposed.

The measure would require a physician or a medical technician performing an abortion to perform an ultrasound on the pregnant woman and explain the ultrasound to the woman. It would also require the medical technician to display the ultrasound images so the woman can view them and to allow the woman to hear the fetal heartbeat if one is audible. It would include exceptions in the case of a "medical emergency," defined as a situation when an abortion is performed to preserve the life of the pregnant woman.

The pregnant woman would be allowed to avert her eyes from the ultrasound or request that the volume of the fetal heartbeat be turned off, the bill states.

Petersen asked Whiting if the bill would apply the ultrasound requirement to women who have miscarriages. Whiting said he didn't know, but that he doesn't read the bill to apply to miscarriages.

"That's a pretty significant question if you're unable to answer whether miscarriages are covered," Petersen said.

"You can’t confirm that this doesn’t apply to women who are going through a miscarriage and for them to have to fill out a permission slip and wait 72 hours before they can get medical assistance is simply inhumane," Petersen said.

Petersen said for women seeking abortions early in their pregnancies, the measure would require doctors or medical technicians to perform transvaginal ultrasounds in order to comply with the bill's requirements.

Whiting suggested Petersen offer an amendment to clarify that language in the bill.

"This is not my legislation. I would throw this in a garbage can. That’s what I would do with it," Petersen said.

Supporters said the legislation would give women more information to make up their minds.

"This bill is about providing women with information. Information is power especially for a woman experiencing an unplanned pregnancy. She deserves all the facts and all the information," said Maggie DeWitte, the executive director of Iowans for Life. 

Daniel Zeno, a lobbyist for the American Civil Liberties Union of Iowa, which opposes the bill, said the legislation contains the same language that the Iowa Supreme Court already considered when it struck down the previous 72-hour waiting period.

"What the Legislature is doing is ... literally passing a law that the court has already found to be unconstitutional," he said.

Stephen Gruber-Miller covers the Iowa Statehouse and politics for the Register. He can be reached by email at sgrubermil@registermedia.com or by phone at 515-284-8169. Follow him on Twitter at @sgrubermiller.

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