Rep. Bruce Braley (D-Iowa): “What I won’t do is support the type of legislation that Senator Ernst introduced in Iowa — which would have banned all forms of abortion, that would have prevented certain forms of contraception from being available to Iowa women, that would have prevented in vitro fertilization and prosecuted doctors for performing what are now legal procedures….”
Iowa State Sen. Joni Ernst (R): “I support life and I believe in life…. The amendment that is being referenced by the congressman would not do any of the things that you stated it would do. That amendment is simply a statement that I support life. And my faith has shaped me on this very issue….”
Braley: “Senator Ernst, I respect your faith. I have my own faith that is very deep and personal to me. But let’s be clear: The Cedar Rapids Gazette did a fact-check on the amendment that you introduced and said it would do all the things that I said it would — that it would ban forms of contraception, it would prevent people from getting in vitro fertilization, and you personally said that doctors who performed those procedures under your bill should be prosecuted.”
Ernst: “That is only if legislation would be passed. This amendment, again, was a statement on life…. When it does come to a woman’s access to contraception, I will always stand with our women on affordable access to contraception. That’s something that Congressman Braley has been trying to mislead our women voters on. I do believe in a woman’s right to contraception.”
— exchange in televised debate for Iowa’s open Senate seat, Sept. 28, 2014
The debate over abortion rights is a difficult and treacherous area for fact checking. But the exchange above, in the contest for Iowa’s open Senate seat, is an excellent example of how politicians dance around this issue.
Echoing his attack ads, Braley is attempting to make Ernst’s position on abortion as extreme as possible, while she is trying play down the impact of the state constitutional amendment she co-sponsored, saying it is just a prelude to legislation.
Who has the better argument?
The “personhood” movement attempts to define life as beginning at conception, usually through amendments in state constitutions, though the language of various proposals is often rather vague. The Iowa amendment supported by Ernst said simply: “The inalienable right to life of every person at any stage of development shall be recognized and protected.”
What’s a person? What’s a stage of development? One can see it would be invitation for endless litigation.
The Iowa amendment did not get very far, but a very similar amendment in North Dakota was approved by the state legislature in 2013, and North Dakota voters are being asked this November whether to enshrine it in the constitution.
Supporters of personhood amendments clearly are vehemently opposed to abortion. But because none of these proposals have ever been enacted, the potential impact is still uncertain. “We have never tested one of these because none have been enacted,” said Elizabeth Nass, senior state issues associate at the Guttmacher Institute, which researches reproductive rights. “There is a murkiness to the language.”
Iowa State Sen. Dennis Guth, who was a lead backer of the Iowa effort, said he offered the amendment in order to pave the way for later legislation. “In and of itself, [the resolution] doesn’t change a whole lot,” he told reporters when the amendment was drafted in 2013. “But it ensures that if pro-life legislation is passed, it won’t be struck down by the Iowa Supreme Court. It’s a supporting document.”
North Dakota activists also claim they are targeting judicial activism. In North Dakota, antiabortion activists were angered when a North Dakota judge struck down antiabortion legislation as violating the state’s constitution. “The North Dakota Human Life Amendment does not impose any criminal penalties, but it will act as a cornerstone upon which past and future pro-life legislation may be built,” according to the Web site of supporters of the amendment.
Margaret Sitte, a North Dakota state senator who wrote the amendment, also says she hopes to spark litigation that will go all the way to the Supreme Court. “We are intending that it be a direct challenge to Roe v. Wade, since [Justice Antonin] Scalia said that the Supreme Court is waiting for states to raise a case,” she told the Huffington Post.
(Recall that the court’s opinion in Roe v. Wade, which legalized abortion, said that “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.” But abortion foes say medical advances in the four decades since the ruling make that position out of date.)
Now, let’s turn to Braley’s scary predictions: The amendment “would have banned all forms of abortion, that would have prevented certain forms of contraception from being available to Iowa women, that would have prevented in vitro fertilization and prosecuted doctors for performing what are now legal procedures.”
As evidence, Braley’s staff pointed to various news articles, as well as statements by abortion-rights supporters. Having closely reviewed much of this material, we find there is a bit of an echo chamber effect. Many news articles, and the local fact check cited by Braley in the debate, cite the same 2012 statement by the American Congress of Obstetricians & Gynecologists, which warned of the potential impact of such personhood amendments.
The statement mixes “would” and “could,” but a key section relies on “could:” “Some of the most effective and reliable forms of contraception, such as oral contraceptives, intrauterine devices (IUDs), and other forms of FDA-approved hormonal contraceptives could be banned in states that adopt ‘personhood’ measures. Women’s very lives would be jeopardized if physicians were prohibited from terminating life-threatening ectopic and molar pregnancies. Women who experience pregnancy loss or other negative pregnancy outcomes could be prosecuted in some cases.”
(The concern is that if a fertilized egg is deemed a person, it could affect the legal sale of various contraceptives that interfere with the implantation of an egg.)
The Braley campaign — and its ad — also cited a report in August by FactCheck.org, which examined a debate over a personhood measure in Colorado. But FactCheck.org also highlighted the difference between could and would: “The ads would be more accurate to use the word ‘could’ instead of ‘would,’ since we can’t predict exactly what impact these measures would have, if any were ever passed.”
It’s worth noting that in North Dakota, lawmakers rejected a proposed constitutional amendment that would have made it difficult for women to use in vitro fertilization because it would have prohibited disposing of unused embryos. So already lawmakers in that state are on record of opposing at least one of Braley’s scenarios.
Braley’s staff also pointed to a video clip of Ernst being asked who should be punished if a personhood amendment were in place. “I think the provider should be punished if there were a personhood amendment,” she replied, though she offered no specifics. Braley assumed punished meant “prosecuted,” which might be a safe assumption.
Gretchen Hamel, an Ernst spokeswoman, said: “As Joni has stated, women should have access to birth control, and she would not do anything to change that.” She did not respond to a request to clarify the comment on potential punishment of doctors.
The Pinocchio Test
Ernst appears to be on relatively solid ground to argue that the purpose of the amendment was to lay the groundwork for additional legislation. That appears to be a key motivation of the sponsors in Iowa and the similar amendment in North Dakota. However, she strains some credulity when she claims that a constitutional amendment was “simply a statement that I support life.” Constitutional amendments are more than mere statements.
But Braley goes too far with his scary scenarios, especially because he repeatedly said the amendment “would” have the impact he described. Ernst is on record as not opposing contraception — though she also favors punishing doctors who perform abortions. We concede that the legal terrain in murky, and the impact uncertain. But that’s all the more reason not to speak with such certainty. Braley thus earns Two Pinocchios.
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