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If it gets challenged, who will pay for Iowa to defend its 'fetal heartbeat' abortion ban?


The cost of a potential lawsuit “would be significant” if it reaches the U. S. Supreme Court, said a spokesman for the Iowa attorney general’s office.
Iowa taxpayers could have to pay the bill for a potential lawsuit over Iowa’s fetal heartbeat abortion ban that the state’s Republicans hope will reach the U. S. Supreme Court.
A lawsuit won’t happen until the measure, passed overnight Wednesday, is signed into law. Republican Gov. Kim Reynolds has not said whether she plans to do so.
Opponents of the measure, which would ban most abortions in Iowa, say it runs contrary to decades of legal precedent and is all but certain to draw a legal challenge.
The Iowa attorney general’s office, led by Democrat Tom Miller, is responsible for defending state laws in court. Lynn Hicks, a spokesman for the office who formerly worked as the Register’s opinion editor, said Miller would “give strong consideration” to defending the legislation if it is signed into law and challenged in court.
However, he said the office is also reviewing other factors, including the bill’s constitutionality, that could lead Miller to decline to defend the bill.
“In very rare exceptions, would we not take the case,” Hicks said, adding that a decision has not been made yet.
It’s hard to predict the cost of defending a fetal heartbeat law, but “if it gets to the U. S. Supreme Court, then the cost would be significant,” Hicks wrote in an email.
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The Associated Press reported North Dakota spent $491,000 defending its own fetal heartbeat law, which was ultimately struck down by a federal appeals court. Of that figure, the state paid a $245,000 settlement to lawyers representing the state’s lone abortion clinic.
At least two national conservative law firms — the Thomas More Society and Liberty Counsel — have offered to defend the legislation free of charge, but it’s not certain the attorney general’s office will accept their help.
“We haven’t decided what outside assistance we’d accept if we defended the bill,” Hicks wrote in an email.
Both Liberty Counsel and the Thomas More Society have offered to either defend the legislation directly as outside counsel hired by the state, or to do research and offer legal advice and assistance to the attorney general’s office if it asks.
At the very least, the groups say they plan to write amicus briefs, also known as friend of the court briefs. Outside parties often write such briefs to weigh in on cases that they have an interest in, but are not directly involved with.
Martin Cannon, senior counsel at the Thomas More Society, said he hopes his organization can do more..
“Everybody and his brother can file an amicus brief, and we’d like to be directly involved in the defense of the case,” Cannon said.
In general, the attorney general’s office controls the defense of its cases and does not share drafts of legal briefs with outside groups, Hicks wrote.
Mat Staver, an attorney who founded and chairs Liberty Counsel, said his organization has spoken with the Iowa legislators who crafted the bill. He has not spoken directly with the Iowa attorney general’s office, but plans to reach out to Miller and Reynolds now that the legislation is headed to the governor’s desk.
“We hope to provide our expertise at any level in whatever way the attorney general and the governor deem appropriate,” he said.
The attorney general’s office under Miller has defended two other abortion restrictions against challenges that reached the Iowa Supreme Court.
In 2015, the Iowa Supreme Court upheld the use of telemedicine abortions after a state board banned the practice. The state was on the losing side of that case.
And in February, the Iowa Supreme Court heard oral arguments in a case challenging a 72-hour waiting period before a woman can obtain an abortion. The court will issue a decision in that case in the coming weeks.
Hicks said the attorney general’s office has not tracked the number of hours spent on those cases, but said “there has not been a significant cost so far” with the waiting period case.
But those cases have not reached the U. S. Supreme Court, which is a far lengthier and more involved process.

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