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Judge ruling in Iowa abortion case could spur federal suit

September 6, 2018

DES MOINES, Iowa (AP) — An organization that fights against rape, incest or fetal abnormality exceptions in abortion-related legislation said Thursday it plans to challenge Iowa’s fetal heartbeat bill in federal court with the hope of getting it to the U.S. Supreme Court.

Michigan-based Save The 1 sought to intervene in the lawsuit alleging the law is unconstitutional because it discriminates against fetuses created by rape or incest and those with medical anomalies by allowing them to be aborted.

The law would prohibit most abortions in the state once a fetal heartbeat is detected. That’s around six weeks of pregnancy.

Judge Michael Huppert said in an order filed Wednesday that the group’s claims go far beyond the legal issues and facts in the initial lawsuit filed by the Iowa affiliates American Civil Liberties Union and Planned Parenthood, which sought to strike down the entire law as unconstitutional. He also said allowing Save The 1 to intervene would delay the case.

Save The 1 hoped to challenge the exceptions in the bill that would allow abortion in some cases of rape or incest and in cases of fetal abnormalities.

An attorney for Save The 1 said she will file a lawsuit in federal court challenging the law’s exception for rape, incest and fetal anomaly as unlawful under the U.S. Constitution’s equal protection guarantees in an effort to get that portion of the law removed.

If successful, that would leave Iowa with one of the most restrictive abortion laws in the country, banning abortions when a fetal heartbeat is detected with no exceptions, which is one goal of the group, said founder and lawyer Rebecca Kiessling.

The law was scheduled to go into effect July 1, but it was put on hold by the courts pending the outcome of the lawsuit.

Even if Save The 1 succeeded in federal court at removing the exceptions clause, the law may still be struck down by the Iowa Supreme Court.

The court previously recognized a woman’s right to an abortion when it struck down an effort by a state medicine board to ban telemedicine abortions and, in June, when it struck down a law creating a 72-hour waiting period for women seeking an abortion.

ACLU of Iowa Legal Director Rita Bettis Austen said the group opposed the Save The 1 effort to enter the case “because the Iowa Constitution protects the right of all women in Iowa to access safe and legal abortion.”

“With this motion out of the way, we are now looking forward to the next stages in our case to get the six-week ban on abortion in Iowa struck down for good,” Bettis said.

The attorneys representing the state from the Chicago-based Thomas More Society declined to comment on the judge’s decision.

Kiessling acknowledges the Iowa law is likely to be overturned by the courts. She said her ultimate goal is to establish a U.S. Supreme Court precedent that aborting fetuses created by rape, incest or those with medical abnormalities is unlawful under the U.S. Constitution’s equal protection guarantee because it discriminates against a specific class of people.

Such a declaration could lead to the next hope of anti-abortion groups: to establish personhood status for fetuses either at conception or at detection of a heartbeat, enabling them to argue that all abortion is unconstitutional killing of a person.

In Roe v. Wade, the landmark 1973 U.S. Supreme Court ruling that established a woman’s right to terminate a pregnancy until a fetus is viable, the court noted that exclusions in laws banning abortions undermine arguments that a fetus is a person that should be protected by the 14th Amendment’s guarantee of the right to life.

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Follow David Pitt on Twitter: https://twitter.com/davepitt

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