Voting out an Iowa justice is our only way to respond to his unjust abortion ruling
Recently, Iowa lawyers with past leadership of the Iowa State Bar Association wrote to discourage Iowans from voting to oust Justice David May of the Iowa Supreme Court, who is up for retention in November. They suggest that retired columnist Rekha Basu is wrong in her recent guest opinion piece to say that there is a good case to be made for voting against May for his concurrence in the opinion of the court to uphold the so-called fetal heartbeat law.
The court has found that Iowa women have no fundamental right to bodily autonomy from the Iowa Constitution and, further, that no actual evidence was needed to uphold the six-week abortion ban from going into effect on the lowest possible legal standard of a rational basis for the statute.
Lawyers have a way of making simple stuff seem confusing. The question of whether Iowans should vote “no” on retention of David May is not hard. The established bar association lawyers say Iowans should not vote against a judge unless there is good cause. They then assume there is none if the vote is merely to get back at the other side for voting out justices who upheld the right to marriage equality in Iowa.
Another View: Abortion ruling respected the people of Iowa, unlike 2009 marriage decision
My decision to vote against May has nothing to do with marriage equality, and no law says a standard of “good cause” is needed. The Varnum opinion on same-sex marriage upheld rights for Iowa families. May, who was not on the Varnum court, joined a majority voting 4-3 to take rights away from women.
David May did not lose any rights. He chose to vote as he did because he found that there was no established history of women having rights to bodily autonomy without even considering the past 50 years. Iowa women and families were once unable to get an abortion by law. But we know women did not even have the right to vote until 1920. No competent lawyer in America would look at legal history for a law and completely ignore an incapacity over time of the people the law would affect. No competent lawyer in America would consider legal history and ignore the past 50 years of experience and reliance on an established right of self-determination, as this court did.
More: After Iowa abortion ruling, should voters boot Justice David May? Rekha Basu weighs in.
May is the only justice among the four who voted for the extreme abortion ban to go into effect who is up for a retention vote in November. He either concurred with the ridiculous reasoning or the partisan politics of the governor who appointed him above the majority of Iowans who believe that women do indeed have autonomy over their own bodies. Iowa women learned this from the Roe v. Wade opinion in 1973 and from years before in seeking change from the tragedy of back-alley abortions, and unwanted and impoverished children. The Iowa Supreme Court taught us as much in 2018 when a 5-2 majority found that the Iowa Constitution did protect the liberty and equality guaranteed for autonomy over one's body, including the right to terminate a pregnancy.
Lawyers learn in law school that they should not criticize judges for their opinions based on precedent from past cases. My colleagues who remain in active status or on the bar committees aren’t talking against the Iowa Supreme Court! But this rule was never meant to silence lawyers from speaking out about impropriety or partisan bias. There is simply no good reason why women’s rights that were once upheld by the same court are now denied, as they have been in recent decisions. This is inconsistent with Iowa’s once-lauded merit judicial selection process and the state's long history of advancing civil rights. Iowa courts simply do not ignore history to take rights away.
May also agreed by his vote that no evidence about the effects of the law needed to be presented. They lifted an injunction without requiring a new hearing in the lower court on the actual merits. The May court took away the rights of women and families based on no actual evidence.
There is nothing about voting against this justice that undermines independence of our courts. In fact, voting is our only remedy.
Iowa lawyers learn that it is better to have a merit process to select judges over a vote of the people. But this implies that merit will not be mired in partisan politics, as it is in Iowa under the current gubernatorial administration. Qualified women lawyers who support and uphold civil rights and register as Democrats no longer apply for openings on our courts because they believe the governor will not appoint them. This is not a merit system.
In November, Iowans should turn their ballot over and vote their beliefs on reproductive freedom for their families as informed citizens who know and understand our history in Iowa and what is at stake. This remains our only ability to voice our objection to judges who would improperly ignore this history and our long-held rights.
Barb Diment is a retired lawyer.
This article originally appeared on Des Moines Register: David May ruled unjustly on abortion in Iowa. Vote him out.
