The Iowa Judicial Building. (Photo courtesy of Iowa Judicial Branch)
The Iowa Supreme Court heard arguments Wednesday over legislative attempts to require that women wait 24 hours before receiving an abortion.
In 2020, the Iowa Legislature approved the waiting period, only to have abortion provider Planned Parenthood sue the state. That resulted in a district court judge blocking enforcement of the law while citing a 2018 Iowa Supreme Court ruling that said the Iowa Constitution guarantees a right to abortion.
Republican lawmakers and Gov. Kim Reynolds fought back by challenging the district court ruling. A lawyer for the governor and the state argued Wednesday that the state Supreme Court should take the opportunity to “correct its 2018 decision” and find that there is no state constitutional guarantee of abortion rights.
Rita Bettis Austen, the attorney representing Planned Parenthood, suggested to the justices Wednesday that the issue of constitutionality need not be revisited, and argued that the 2020 legislation imposing a waiting period violates the so-called “single subject” requirement for new legislation because it was packaged with an unrelated bill and passed with little public notice.
Some elements of that argument appeared to resonate with Chief Justice Susan Christensen.
“Help me understand the logistics of how this bill came about,” the chief justice said to Assistant Attorney General Sam Langholz, the attorney for the state. “It’s definitely a controversial topic. Am I correct that it was voted on in the dead of the night without notice to legislators or the public?”
“It did start in the evening and, you know, was completed in the middle of the night, that’s correct,” Langholz replied. “Yeah, it’s the same notice that applies to the legislative process throughout … It followed the same rules of procedure with respect to notice of any provision.”
“Help me understand the optics,” Christensen said. “The Legislature has this job to do – to represent the people of the state of Iowa in what bills get passed and approved by the governor – and yet, were the people of Iowa deprived of an opportunity to really be involved in that decision making?”
“The people of Iowa, through their representatives, the legislators, you know, in the Legislature, had the opportunity to fully debate and discuss this bill,” Langholz said. “We have a representative democracy in Iowa. You know, essentially the people speak through their legislators in the Capitol.”
Langholz said while there may be legitimate policy concerns about the manner in which the law was enacted, the constitution doesn’t require that the Iowa Legislature “give notice” of its intent to enact certain laws.
Langholz also noted that Iowa, unlike some states, has no “original purpose” clause in the state constitution that would prevent lawmakers changing the substance of a bill as it moves through the Legislature.
Part of Planned Parenthood’s argument was that there’s nothing to suggest that a 24-hour waiting period will cause someone to change their mind about seeking an abortion. “If mandatory-delay laws don’t change women’s minds, which they don’t, then they don’t advance the state’s interests and aren’t rationally related to them,” Bettis Austen told the justices.
She argued that nothing factual has changed to justify the court changing its 2018 position that the right to an abortion is guaranteed under the state constitution.
“The state’s argument is very simple: It is just that it disagrees with this court’s prior precedent,” she said. “And that is not enough … The state has to be able to point to something — changed facts or changed foundation in the law.”
Asked by the justices whether they couldn’t simply find that their own past ruling was made in error, Bettis Austen said “mere disagreement” with past precedent is not sufficient to show clear error on the court’s part.
Addressing the issue of whether a waiting period would run afoul of the court’s 2018 ruling, Christensen asked about the impact of a 24-hour delay and whether it placed an undue burden on women who are seeking an abortion.
“Is 24 hours really that unreasonable?” Christensen asked. “I mean, I have sat in an emergency room for 10 hours waiting for some attention.”
In response, Bettis Austen said there’s uncontested evidence that a 24-hour delay triggers other delays related to staffing and the availability of additional appointments.
Christensen said she formerly practiced as an adoption lawyer, among other specialties, and had clients who decided against giving up their child. “And there were people who changed their mind after talking to me or maybe just chatting with their friend or whatever,” she said. “Even if it’s only one person — let’s just say it just changes one person’s mind. Is 24 hours really that unreasonable?”
“Your question goes to, ‘Do waiting periods change women’s minds?’ and the state has not put any evidence in the records that they do, and the unrebutted evidence is that they don’t,” Bettis Austen said.
One of the justices asked Langholz about a Utah study that suggests 8% of women would have changed their mind about seeking an abortion due to a waiting period.
Citing that percentage, Justice Thomas Waterman asked Langholz “how many additional babies would be born, on average, in Iowa each year” with a 24-hour waiting period in place.
Langholz indicated he was unsure about that, noting that some of the issues surrounding studies of that kind had yet to be litigated at the district court level.
After the arguments were presented to the court, Jamie Burch Elliott, the director of public affairs for Planned Parenthood Advocates of Iowa, said the stakes in the case are higher than just a 24-hour waiting period.
“At risk is Iowans’ reproductive freedom to decide when and how to start or expand their families,” she said. “The Iowa Supreme Court’s decision could have implications for generations to come by paving the way for politicians to take away the fundamental right of the people they represent to make private health care decisions between them and their doctor.”
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