July 5, 2018 (LifeSiteNews) – As pro-life Americans hopefully anticipate a new Supreme Court justice that may vote to overturn Roe v. Wade, a leading national pro-life advocate says that pro-lifers are overlooking the rise of an even bigger obstacle to ending abortion.
On Saturday, Save the 1 founder and president Rebecca Kiessling warned that the Iowa Supreme Court’s decision Friday to strike down a state law requiring women to wait 72 hours before having abortions was part of a broader legal strategy to immunize their court victories by rooting them in state Constitutions rather than Roe.
“This has been the latest strategy of the abortion lobby and Planned Parenthood. They've been suing in State Courts and no one has been paying attention,” she wrote on Facebook. “Other states such as North Dakota have found a broader right to an abortion under their state constitutions than there is pursuant to Roe versus Wade and they have been overturning even reasonable regulations.”
Chief Justice Mark Cady wrote in his majority opinion that the law “violates both the due process and equal protection clauses of the Iowa Constitution because its restrictions on women are not narrowly tailored to serve a compelling interest of the state.” The U.S. Supreme Court has upheld shorter 24-hour waiting periods as compatible with the federal Constitution.
“So this whole discussion of Justice Kennedy retiring and President Trump getting to appoint a new Supreme Court Justice is really rendered moot because, when Roe is overturned, abortion will be legal in every blue state as well as in every red state where there is a liberal judiciary,” Kiessling continued.
Despite keeping Roe in effect, the Supreme Court has upheld a variety of additional regulations on abortion, including prohibitions on non-physicians performing abortions, parental notification and consent requirements, excluding abortion funding from state Medicaid programs, and informed consent requirements. But in an interview with LifeSiteNews, Kiessling explained why those would be harder to uphold under the legal regime Planned Parenthood is trying to establish.
“This happened not just in Iowa, it happened in North Dakota several years ago, this is happening in Minnesota,” she said, “Planned Parenthood, as a strategy, preparing for Roe v. Wade to be potentially overturned, has been filing cases in state court, in pro-life red states that are passing abortion regulations […] and they have been getting reasonable regulations overturned which would be upheld by the US Supreme Court, and they’re finding a broader right to abortion under state constitutions.”
Kiessling predicted preborn children are “going to end up getting worse off than they are under Roe v. Wade,” because while states like Michigan have a pro-life judiciary thanks to judicial elections and the work of Right to Life of Michigan, many Republican states where judges are appointed and therefore not accountable to voters have “very liberal judiciaries.”
“Nobody reports on that. It almost like the dirty little secret in the pro-life movement because it — reporting doom and gloom — doesn’t help raise funds,” Kiessling lamented. “What helps raise funds is telling people, ‘we’re so close, send us money!’ I’m getting a flurry of emails now: ‘Kennedy’s retiring, we’re almost there, we’re so close to ending abortion!’ No we’re not. We’re not even close.”
But Kiessling also offered a solution, which was for pro-lifers to not merely attempt to overturn Roe and toss it to the states, but to convince the Supreme Court to protect the preborn as persons under the 14th Amendment. She cited Save the 1’s motion to intervene in the legal battle over Iowa’s recently-enacted heartbeat law as the “only hope” of countering this latest strategy.
Enacted in May, the heartbeat law bans abortions on most babies with detectable heartbeats, but was amended at the last minute to include exceptions for rape, incest, and fetal abnormalities. Attorneys for the ACLU, Planned Parenthood, and Iowa City’s Emma Goldman Clinic sued almost immediately, and a district judge has temporarily blocked the law’s enforcement.
Save the 1 wants to get the exceptions stricken from the bill as a violation of the affected babies’ rights to life, due process, and equal protection under the law, a change Kiessling says will not only make the law more pro-life, but will actually strengthen its ability to challenge both Roe and these state rulings.
“We have the only Federal claim within the case, which is the #personhood claim under the Fourteenth Amendment — not just for those in our people group who were conceived in rape and with fetal abnormality diagnoses, but also for all pre-born children,” Kiessling wrote. “Otherwise, with the recent Iowa Supreme Court ruling, the heartbeat law is dead in Iowa and the only way to fix that is to amend the state constitution.”
“We’re arguing that the heartbeat establishes personhood and that the exceptions violate due process and equal protection for all persons under the Fourteenth Amendment. The reason why the state can’t make that personhood claim is because the law has exceptions, and they can’t make the claim without being hypocrites,” she elaborated to LifeSiteNews. She also noted that only a federal claim, such as invoking the 14th Amendment, could move a dispute about the state Constitution into federal jurisdiction.
Planned Parenthood “didn’t even mention Roe v. Wade because they didn’t want it in federal court,” she stressed.
Kiessling cited Footnote 54 of Roe’s majority opinion, which argued that Texas law’s inclusion of an exception for saving the mother’s life, its identification of abortion-seeking women as neither principals nor accomplices, and its lesser penalty for abortions than other murders, suggested the state didn’t believe its own argument that the fetus was a full legal person.
“In Roe versus Wade, the court pointed out how Texas had exceptions and exceptions, and those undermined the state’s whole argument for personhood,” Kiessling summarized. “And so the Supreme Court said, ‘Texas, you don’t even believe that this is a person.’”
“We are doing a huge favor to the pro-life movement in Iowa and nationally, by being involved in this case,” Kiessling declared. “I am a chess player, you have to think several steps ahead. You have to look at the whole board, and you have to think multiple moves ahead.”