Judge calls out lawmakers on ‘tricks’ and ‘mischiefs’ in legislative process

June 28, 2021 8:00 am

The Iowa Capitol at night. (Photo by Kathie Obradovich/Iowa Capital Dispatch

Last week’s district court ruling that struck down a 2020 Iowa law was notable not only as the latest skirmish in the war over abortion rights but also for the way the judge took Iowa lawmakers to task for the shortcuts they have been taking with the legislative process.

District Judge Mitchell Turner dispensed fairly quickly with the substance of the law: a 24-hour waiting period for women seeking an abortion. He simply pointed to the Iowa Supreme Court’s 2018 ruling that struck down a similar, 72-hour waiting period and overturned the new law on similar grounds.

The governor has already vowed an appeal and the new law is on hold until then. But the Iowa Legislature’s work may well continue before the appeal is decided and this ruling directly relates to how lawmakers do the people’s business.

In particular, Turner found that the Legislature’s GOP majority violated a constitutional requirement that each bill deal with a single subject.

The bill, House File 594, was related to the withdrawal of lifesaving procedures for minors. The amendment, given final approval in the early morning hours of Sunday, June 14, would require women seeking an abortion to “first receive an ultrasound and certain state-mandated information, and then wait at least 24 hours before returning to the health center to have an abortion.”

Not all laws that combine unrelated subjects qualify as unconstitutional. But the way the bill was rammed through in the middle of the night, with no opportunity for public comment, contributed to the judge’s argument that this was an “extreme case” that met court standards for finding that the law was unconstitutional.

“[T]he circumstances surrounding the passage of the Amendment in this case, as set forth in the limited record available to the Court at this stage of litigation, appear to show that the Amendment was passed under highly unusual circumstances, including the speed at which the Amendment was passed,” Turner wrote. “Abortion is, under any analysis, a polarizing and highly controversial topic, yet the Amendment was passed with limited to no debate, and without Iowans being given a chance to respond to the Amendment.”

Turner added: “Upon review of both the Iowa Senate and House videos, it is abundantly clear to this Court that what occurred in the Iowa Legislature on June 13th and 14th, 2020 was exactly such ‘tricks in legislation’ and ‘mischiefs’ that the single-subject rule exists to prevent.”

House Speaker Pat Grassley declined an interview, but he provided a statement disagreeing with the judge: “There was nothing unconstitutional or even uncommon about the legislative process used to pass House File 594. I was pleased to see the Governor will be appealing this decision and I’m confident we’ll get the right outcome to solidify our efforts to protect unborn children.”

Here’s a quick synopsis of how the bill progressed the Legislature:

Late in the afternoon of June 13, the second-to-last day of the legislative session, the Senate took up House File 594, a noncontroversial bill which had already passed the House. Sen. Jason Schultz, R-Schleswig, introduced a “technical” amendment that duplicated a definition of “minor” already in code and renumbered some sections. Democrats raised questions about the need for the amendment. Soon, its true purpose would become all too clear: The bill needed to return to the House, where Republicans had plans for it.

Just after 10 p.m. on June 13, the House took up House File 594 to consider the Senate amendment. Reps. Shannon Lundgren, R-Peosta, and Sandy Salmon, R-Janesville, introduced the abortion amendment. In response to a challenge from a Democratic representative, the speaker ruled the amendment out of order because it was not “germane” to the bill.  In other words, it violated the Legislature’s own “single-subject rule.”

No matter. It only takes 51 votes to suspend chamber rules. House Republicans did so on a vote of 52-42, passed the amendment and sent the bill back to the Senate just after 11 p.m.

Debate in the Senate began at 4:22 a.m. and the amended bill passed about 5:41 a.m.

So to summarize: House Republicans decided to set aside their own chamber rules to consider a non-germane, highly controversial amendment in the middle of the night with no opportunity for public comment or even notice.

I agree with Grassley on one point: It’s not uncommon. Both parties, when they’ve been in the majority, have been known to circumvent the normal legislative process in similar ways to get their work done and end the session. But it’s also a rotten, underhanded way to pass laws, especially those that people on both sides care deeply about.

People who want to see more abortion restrictions in Iowa law might well wonder why this priority legislation had to be tacked on to an unrelated bill like an afterthought in the final hours of the session. Surely, even in the height of the pandemic, this was important enough to move through the regular legislative process on its own?

Those who want the Iowa Supreme Court to reconsider its 2018 position on abortion waiting periods surely wouldn’t want the shoddy legislative process to become the central issue in an appeal.

I don’t really expect the current Statehouse majority to look past the hot-button abortion issue to question whether they’ve gone out of bounds in their legislative process. More likely, they’ll conclude the end justifies the means if they win, and blame “unelected judges” if they lose. That’s a shame, because when “tricks” and “mischiefs” are an accepted part of passing laws, all Iowans lose.

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Kathie Obradovich
Kathie Obradovich

Editor Kathie Obradovich has been covering Iowa government and politics for more than 30 years, most recently as political columnist and opinion editor for the Des Moines Register. She previously covered the Iowa Statehouse for 10 years for newspapers in Davenport, Waterloo, Sioux City, Mason City and Muscatine.