In my post last Friday summarizing the deadlock on the Iowa supreme court, I observed that the position set forth by Justice Thomas Waterman against allowing Iowa’s 2018 heartbeat law to take effect would be easier to take seriously if Waterman’s opinion were not littered with tendentious rhetoric and flimsy arguments. I’ll provide a few examples:
1. The heartbeat law provides that a “physician shall not perform an abortion upon a pregnant woman when it has been determined that the unborn child has a detectable fetal heartbeat, unless, in the physician’s reasonable medical judgment, a medical emergency exists, or when the abortion is medically necessary.”
Waterman never quotes or paraphrases this provision. Instead, in the second sentence of his opinion, he states that the heartbeat law “would prohibit most abortions at about six weeks of pregnancy—before many women even know they are pregnant.” (Emphasis added.) The italicized phrase is the stock abortion-industry political talking point on heartbeat laws (though Planned Parenthood often now refers to “people” rather than “women”). It’s strange to see Waterman parrot it, especially as it plays no role in his legal analysis.
2. Waterman opines that “it is legislating from the bench to take a statute that was moribund when it was enacted and has been enjoined for four years and then to put it into effect.” (Emphasis added.) He similarly complains that the state of Iowa is asking the court “to judicially revive a statute that was declared unconstitutional in a never-appealed final judgment four years ago.”
No, it is not “legislating from the bench” to enable an enacted statute to be enforced. And a court that has wrongly killed a statute has an obligation to “revive” it.
3. Waterman thinks it proper to disparage the 2018 law as a “hypothetical law.” Indeed, he imagines that he is “put[ting] it politely” when he asserts that “the legislature was enacting a hypothetical law.” His reasoning is that the law “had no chance of taking effect” under the then-existing “constitutional law landscape.” I don’t dispute his premise. But he again shows a profound confusion about the relative roles of the legislature and the judiciary in positing that it follows that the law was “hypothetical.”
4. Waterman thinks it insightful to contrast this case with the Iowa supreme court’s 2021 ruling in State v. Wright. In Wright, the court held by a 4-to-3 vote that the Iowa constitution’s explicit protection of the “right of the people to be secure in their persons, houses, papers and effects, against unreasonable seizures and searches” meant that a police officer needed a warrant in order to take and open a citizen’s opaque trash bags that had been left outside for collection and to rummage through their contents. Waterman and the two justices who joined his opinion last Friday were in dissent.
In a very strange closing passage that seems designed to rouse the yahoos or (pardon the redundancy) win plaudits from Slate commentators, Waterman asserts:
It would be ironic and troubling for our court to become the first state supreme court in the nation to hold that trash set out in a garbage can for collection is entitled to more constitutional protection than a woman’s interest in autonomy and dominion over her own body.
Waterman’s weird phrasing repeats his earlier condemnation of Wright as “giving constitutional protection to discarded trash.”
Waterman obscures the elementary points that the majority in Wright was affording constitutional protection to Iowa’s citizens, not to trash, and that it was doing so pursuant to an explicit constitutional provision. I take no position on whether the majority or the dissent reached the right result in Wright. But there is nothing “ironic and troubling” about recognizing that the state constitutional claim in Wright is far more substantial than the claim that very general provisions of the Iowa constitution that say nothing specific about abortion and that co-existed for over a century with Iowa’s statutory ban on abortion from conception prohibit the 2018 heartbeat law.
(A minor correction to my first post: I mistakenly identified Justice Christopher McDonald as the author of both of the opinions that disputed Waterman. Justice Matthew McDermott wrote the second opinion.)