A change in the political party in the office of the attorney general could affect abortion in Iowa

The office of the attorney general can play a role in Iowa’s abortion rights.


Gabby Drees

Iowa Attorney General Tom Miller speaks with the press at the Iowa Democratic watch party at Hotel Fort in Des Moines on Tuesday, Nov. 8, 2022. Miller lost to Brenna Bird after serving a combined 38 years in office.

Emily Delgado, Politics Reporter

Iowa’s next chief legal officer is poised to support Republican efforts to restrict abortion access, as the longtime Democratic Iowa attorney general’s office is among the seats flipped by Iowa Republicans in the 2022 midterm elections.

Following the U.S. Supreme Court ruling in Dobbs v. Jackson that left abortions rights to the states, the future of access to abortion in Iowa is still undetermined. The current Democratic attorney general has refused to represent the state in cases challenging abortion rights. But now the office has flipped control, which will change how cases concerning abortion in the state are litigated.

Republican Brenna Bird defeated Democratic incumbent Attorney General Tom Miller, the longest-serving attorney general in the country, by 20,542 votes on Nov. 8.

As attorney general, Bird said she will defend laws concerning abortion, while Miller declined to defend the fetal heartbeat law.

“Our current attorney general refused to defend the heartbeat bill when it was challenged in 2018. He didn’t do his job there. … When I’m attorney general, I will do my job and defend the law,” Bird said during an Iowa PBS debate with Miller.

Miller’s ousting from the seat means there will be more Republican leadership on the state level working alongside a trifecta of Republican legislative control. It is probable a Republican attorney general will defend any cases involving abortion the state wishes to pass, said University of Iowa political science professor Tim Hagle.

“Conversations about abortion often overlook the attorney general’s role in law making,” Lynn Hicks, Iowa attorney general chief of staff, said.

“The legislature or governor could seek our advice on the bill, but there’s no obligation that it goes to the attorney general before passage,” Hicks said. “An attorney general kind of very publicly registers in favor or against a bill, or we can just, behind the scenes, express our opinion.”

The office of the attorney general, which is the state’s chief legal officer and is in charge of providing legal support to state officials, plays a role in how abortion rights fall in Iowa by either defending or prosecuting cases about abortion.

In June, Miller removed the office of the attorney general from representing the state in Planned Parenthood v. Kim Reynolds, when the Iowa Supreme Court ruled to allow a 2020 law that required a 24-hour waiting period for people seeking an abortion to take effect.

“Our office is withdrawing from the case involving the 24-hour waiting period, or House File 594, for ethical reasons,” Miller said. “I have made many clear public statements supporting Roe v. Wade and the rationale that underlies it.”

In this case, the state found outside counsel because Miller withdrew from the office of the attorney general. When the attorney general cannot represent the state, an outside counsel is used, Hicks said.

“There may be times when the attorney general’s office may feel that it’s contrary to what Iowa law is, and so they chose not to defend it,” Hagle said. “And so that’s when the governor’s office in this particular case would need to find some outside counsel of some sort.”

The Iowa Supreme Court ruled abortion is not protected in the state’s constitution on June 17, overturning a 2018 ruling that determined Iowans’ abortion rights are fundamental.

One of the laws that restricts receiving an abortion in Iowa is the fetal heartbeat law, which forbids doctors from performing abortions around six weeks when a fetal heartbeat can be detected. As previously reported by The Daily Iowan, the law is held up in court and not currently in effect.

In 2019, the Polk County District blocked the fetal heartbeat law from taking effect based on the 2018 Iowa Supreme Court ruling that held abortion was a fundamental right in Iowa.

During the discussions on defending the fetal heartbeat law, Miller removed the attorney general’s office from the case.

“Attorney General Miller determined that he could not zealously assert the state’s position because of his core belief that the statute, if upheld, would undermine rights and protections for women,” Hicks said.

That case remains in litigation, as Reynolds seized upon the overturning of Roe v. Wade to ask the court to allow the law to take effect.

While these cases remain in limbo in the courts, a change in the attorney general’s political party can lead to different views toward a case, Hagle said.

“So, having a switch from a party from Democrat to Republican might mean that there’s a different interpretation, and the attorney general’s office may view different laws differently,” Hagle said.

Bird said it is up to the Legislature to decide how abortion rights will fall in the state but said it is her job to defend any laws.

Abortion was a hotly debated topic during the midterm campaign season. In one of the televised debates between then-U.S. Senate candidates — the Republican incumbent Sen. Chuck Grassley and Democratic challenger Mike Franken — Grassley said he would not vote for a national ban on abortion but would leave the issue of abortion to state legislatures.

On the national level, the U.S. attorney general is appointed by the president, while the state attorney general and other offices like the treasurer and the secretary of state are elected by citizens on the state level.

As a result of this year’s midterms, longtime Democratic incumbents in Iowa like Miller and state Treasurer Michael Fitzgerald were defeated by their Republican opponents. With Reynolds’ reelection and the GOP’s flip of these state offices, Republicans strengthened their hold on state government.

On the federal level, Iowa’s Senate and House representatives remained Republican and picked up one House seat with Democratic incumbent U.S. Rep. Cindy Axne’s loss to Republican Zach Nunn in the 3rd Congressional District.

University of Northern Iowa political science Professor Scott Peters said now that a Republican has been elected, the office could likely defend Reynolds’ abortion beliefs on the national level.

“If the Biden administration were to take action to support access to abortion in some way, it’s unlikely Congress would pass any law protecting access to abortion, given that the House is going to be controlled by Republicans,” Peters said. “But if that were to happen, maybe with the Republican attorney general we would see Iowa joining lawsuits to challenge those kinds of federal actions that promoted abortion or promoted access to abortion.”

Peters said a situation like this is hypothetical because it is uncertain where access to abortion in Iowa will fall.