***The following remarks were prepared for delivery by Alan Ostergren, president and chief counsel of The Kirkwood Institute, at the Iowa March for Life on Saturday.***
We had hoped that today would be a day of celebration. Instead it is a day of reflection and renewed purpose.
I want to speak briefly about the two sides of the 3-3 split on the Court. One side, those who would keep the injunction in place, explained their views in a decision written by Justice Waterman. The other side, the ones who would allow the heartbeat bill to be enforced, explained their views in a decision written by Justice McDonald.
Let me start with the Justices who believed the law can be enforced. They recognized that the heartbeat bill is still a law. It is still in the Iowa Code. It hasn’t been repealed. When the Iowa Supreme Court decided last year there was no fundamental right to abortion under the Iowa Constitution, and the U.S. Supreme Court ruled the same way in the Dobbs case, that meant the injunction against enforcement of the law should be lifted. They cited cases holding that an injunction can, and indeed must, be lifted when the law it was based on has changed.
So what did Justice Waterman’s opinion say in response? Several of his arguments stand out.
One, he claimed that this wasn’t really a law. He said: “when the statute was enacted in 2018, it had no chance of taking effect. To put it politely, the legislature was enacting a hypothetical law.” He also considered the political process: whether a constitutional amendment has moved forward, what legislation has or hasn’t passed this session, and how many current legislators joined the various friend-of-the-court briefs filed in the case. He also repeatedly emphasized that abortion was a controversial issue.
The Court’s opinions in this case run 64 pages. Time does not allow me to examine in detail every argument made. But I want to talk about one thing in Justice Waterman’s opinion. It’s his discussion of a case called State v. Wright. But first I have to give you a bit of background.
Wright was a criminal case. It involved the question of whether the police had to have a search warrant to search a garbage can in an alley behind a house. If the can was inside the garage, the police clearly need a warrant. If they search a garbage can in a public place, like here on the Capitol grounds, they clearly don’t. So the issue in Wright was whether the garbage can in the alley should be treated like one in a house or in a public space.
Justice McDonald wrote an opinion holding that under the Iowa Constitution the police needed to have a warrant. Justice Waterman dissented in that case and thought the police didn’t.
You could be forgiven for wondering why a case about the search of a garbage can has anything to do with the constitutionality of a law protecting innocent preborn children. Here is the relevance: the Iowa Supreme Court is the final word on what the Iowa Constitution means in a particular lawsuit. So even though the U.S. Supreme Court had the Dobbs case, that doesn’t mean our state supreme court can’t do something different under the state constitution. Because Wright was a case where the Court decided the garbage can search issue under the state constitution in a way that was different from how the U.S. Supreme Court had ruled on the same issue under the Fourth Amendment, it was relevant to the question of whether our court should follow the Dobbs ruling.
If that was all Justice Waterman wanted to say about Wright it would be fine.
But he didn’t stop there. Here is the big finish to his opinion:
“We return to Wright to highlight one more point. 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. That would be untenable.”
Oh my, did the pro abortion crowd love this line. Twitter lit up with it. Practically every news story included the quote. If you are doing politics, it’s a great tag line for the commercial. Punchy, tight, memorable.
The left loved the line so much they even gave Justice Waterman a free pass for using the word “woman.”
But was this comparison to the garbage can search case a legal argument?
Of course not. It’s simply comparing the outcome of one case to another without any consideration of whether the legal issues are the same or one is consistent in his position.
And Justice Waterman should understand that he’s not the only one who can do this.
If I wanted to, I could talk about an opinion he wrote in a case called State v. Howard. It’s another criminal case. I know about it since I was the prosecutor on it. The defendant was convicted at a jury trial for molesting his girlfriend’s 18-month-old son. She came home from a quick errand and found her child bleeding out of his rear end. When the police investigated, the boyfriend confessed.
Justice Waterman wrote the decision that reversed the conviction because he said the confession had to be thrown out.
Would it be a legal argument for me to say “it is troubling that Justice Waterman cared more about a child molester than his victim?” No, of course it wouldn’t be. It would be substituting the legal issues at stake in the case with an emotional appeal based purely on the outcome.
Judges should understand that their job is to decide the case based on what the law requires, not on the outcome that is pleasing or will get the most “likes.” And they certainly shouldn’t take cheap shots to dunk on their colleagues.
I invite you to read the opinions in the heartbeat case for yourself. Ask yourself this question: which Justices explain their reasoning in a way that persuades you they have applied neutral principles of law to reach the required outcome. Perhaps you will be persuaded by the Justices who said that the legislature passed this law to protect the sanctity of life and that based on our correct understanding of the constitution it is a valid law that can be enforced. Or, perhaps, you will be persuaded by Justice Waterman.
You decide.
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In America, aborting babies is a billion dollar industry. A billion dollars gets you a lot of influence. Not to mention a popular culture set deeply against us. Plus the media are against us. No one should expect to receive the approval of the world for fighting for the sanctity of life.
But I have Good News about that.
In Romans 12:2 we are told, “Do not conform to the pattern of this world.” And James 4:4 tells us to not be friends with the world. We should not be worried about whether our belief in the sanctity of life is popular. It is right. That is all we need to know.
The fight ahead will be hard. There will be setbacks again. But this fight is a worthy one. I am grateful for a pro-life Governor and pro-life majorities in the House and Senate. I trust they will find the right path forward. And I am grateful for a pro-life Attorney General who will defend life in the court system. Through hard work and prayer we can accomplish the protection of life.
