Removing an Iowa judge is the only way we can respond to his unjust abortion ruling

Recently, Iowa lawyers who have served on the Iowa State Bar Association in the past have written to discourage Iowans from voting to remove Justice David May from the Iowa Supreme Court, who is up for retention in November. They suggest that retired columnist Rekha Basu is wrong in her recent guest column to argue that there is good reason to vote against May for his agreement with the court’s opinion to uphold the so-called fetal heartbeat law.

The court found that Iowa women do not have a fundamental right to bodily autonomy guaranteed by the Iowa Constitution and, further, that no evidence was needed to uphold the ban on abortion after six weeks of pregnancy, relying on the lowest possible legal standard as a rational basis for the statute.

Lawyers have a way of making simple things seem confusing. The question of whether Iowans should vote “no” on keeping David May is not a difficult one. The bar association’s established lawyers argue that Iowans should not vote against a judge unless there is a good reason to do so. Then they assume there is none if the vote is merely revenge on the other side for removing the judges who upheld Iowa’s marriage equality law.

Another view: Abortion ruling respected Iowans, unlike 2009 marriage ruling

My decision to vote against May has nothing to do with marriage equality, and there is no law that says a “good cause” standard is necessary. Varnum’s opinion on same-sex marriage affirmed the rights of families in Iowa. May, who was not on Varnum’s bench, joined the 4-3 majority to take away women’s rights.

David May has not lost any rights. He chose to vote the way he did because he discovered that there is no established history of women having rights to bodily autonomy, even without taking into account the last 50 years. Women and families in Iowa once could not obtain an abortion under the law. But we know that women did not even have the right to vote until 1920. No competent lawyer in America would look to the legal history for the law and completely ignore the inability of the people affected by the law over time. No competent lawyer in America would look to the legal history and ignore the last 50 years of experience and reliance on the established right to self-determination as this court did.

More: After Iowa abortion ruling, should voters throw out Judge David May? Rekha Basu speaks out.

May is the only justice of the four who voted to uphold the extreme abortion ban, which is set to be voted on in November. Either he agreed with the absurd reasoning or with the partisan politics of the governor, who appointed him over the majority of Iowans who believe that women do indeed have autonomy over their own bodies. Iowa women learned this from the 1973 Roe v. Wade opinion and in years before, as they sought change from the tragedy of back-alley abortions and unwanted and impoverished children. The Iowa Supreme Court taught us this in 2018, when a 5-2 majority ruled that the Iowa Constitution protects the freedom and equality guaranteed by autonomy over one’s own body, including the right to terminate a pregnancy.

Lawyers are taught in law school not to criticize judges for their opinions based on precedent from previous cases. My colleagues who remain active or on the bar committees do not speak out against the Iowa Supreme Court! But this rule was never intended to silence lawyers from speaking out about impropriety or partisan bias. There is simply no good reason why women’s rights, once upheld by this same court, should now be denied, as has been the case in recent rulings. This is contrary to Iowa’s once-vaunted merit-based judicial selection process and the state’s long history of promoting civil rights. Iowa courts simply do not ignore history to take away rights.

May also agreed with a vote that no evidence of the law’s effects needed to be presented. The order was lifted without a new hearing in a lower court on the factual basis. May’s court stripped women and families of their rights without any factual evidence.

There is nothing in voting against this justice that undermines the independence of our courts. In fact, voting is our only remedy.

Iowa lawyers are learning that it is better to have a merit process for selecting judges than a popular vote. But that means that merit will not be entangled in partisan politics, as it is in Iowa under the current governor’s administration. Qualified women lawyers who support and defend civil rights and register as Democrats are no longer running for office in our courts because they believe the governor will not appoint them. That is not a merit system.

This November, Iowans should cast their ballots and vote their beliefs about 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 recourse against judges who would wrongly ignore that history and our long-standing rights.

Barb Diment is a retired attorney.

This article originally appeared in the Des Moines Register: David May ruled unfairly on Iowa abortion. Vote for him.