The Iowa Judicial Building. (Photo courtesy of Iowa Judicial Branch)
The Iowa Supreme Court found there is no state constitutional right to an abortion, reversing a previous decision in a ruling Friday.
The decision leaves Iowa open to an abortion ban or heightened restrictions if the U.S. Supreme Court overturns federal protections in a ruling expected in the coming weeks.
The new interpretation of abortion law in Iowa’s constitution comes from a decision in an appeal by Planned Parenthood of the Heartland of Iowa’s 24-hour waiting period for patients seeking an abortion. The Supreme Court reversed a lower court’s decision to block the law after receiving an appeal from the state. It also used the opportunity to revisit a 2018 ruling that for the first time declared a constitutional right to abortion in the state constitution.
The waiting period is now assumed to go into effect, Rita Bettis Austen, legal director with the American Civil Liberties Union said at a news conference Friday afternoon. Abortion providers now must adhere to the two appointment and 24-hour waiting period timeline, which health care services are now working to implement.
Austen emphasized that under current state and federal law, abortion remains legal in Iowa.
“The Court’s decision today is a devastating and shocking reversal,” she said. “But abortion remains legal in Iowa and we will continue to fight to challenge the two-appointment, minimum 24-hour mandatory delay law under the undue burden standard that the Court declined to overrule today.”
Now, the law requires a new lower-court review based on Friday’s decision. The court held that the U.S. Supreme Court’s “undue burden” standard still holds, which requires that abortion restrictions not place a “substantial obstacle” in front of a woman seeking an abortion.
“Although we overrule (the 2018 precedent), and thus reject the proposition that there is a fundamental right to an abortion in Iowa’s Constitution subjecting abortion regulation to strict scrutiny, we do not at this time decide what constitutional standard should replace it,” the Iowa Supreme Court Justice Edward Mansfield wrote.
Republicans argued the 2018 decision in Planned Parenthood of the Heartland v. Reynolds – which said women’s abilities to control when and how many children they have are essential to their liberty and equality – was an overreach. Last year, they made the first step toward amending Iowa’s state constitution to no longer protect the right.
Mansfield was among two justices who dissented in the 2018 decision. Since then, four of the five justices of the majority have left the court, and all of their replacements were appointed by Gov. Kim Reynolds.
Chief Justice Susan Christensen, a Reynolds appointee, did not join Friday’s majority in overruling the 2018 decision. She noted the shift of the court’s membership and said it was too soon to revisit the ruling.
“This rather sudden change in a significant portion of our court’s composition is exactly the sort of situation that challenges so many of the values that (legal precedent) promotes concerning stability in the law, judicial restraint, the public’s faith in the judiciary, and the legitimacy of judicial review,” Christensen wrote.
Sally Frank, a Drake University Law School professor, concurred: “It leaves the court open to the view that constitutional decisions aren’t decided on the merit but merely by who is on the court.”
Friday’s decision also acknowledged the forthcoming U.S. Supreme Court decision on a high-profile abortion case in Mississippi. Documents leaked in May suggested the court planned to overturn Roe v. Wade and Planned Parenthood v. Casey, two landmark cases establishing federal abortion rights.
Under previous Iowa constitutional law, that federal decision would not impact Iowans’ rights to access abortion. Now, state legislators could pass more stringent restrictions on abortion – including a complete ban of the procedure – if the U.S. Supreme Court overturns the current precedent.
If Casey’s “undue burden” standard is nullified, it’s likely that Iowa courts will use the “rational basis” test to determine the validity of future laws that restrict abortion, Frank said. That means laws are upheld if there is a legitimate rationale, even if the Legislature didn’t rely on that rationale.
“Basically, when you use rational basis, laws are upheld,” Frank said.
Iowa courts will remain a battleground for abortion access. While strict scrutiny no longer applies, not all legal protections for abortion access have been stripped, Austen said at the ACLU news conference. The Iowa Supreme Court is still protecting the right to abortion at the undue burden level, she said.
“There are very real world consequences in terms of the health and safety for Iowa women, in terms of their access to abortion, because more laws will be upheld on an undue burden standard than on a strict scrutiny, fundamental rights standard,” Austen said. “That doesn’t mean the undue burden standard is not robust and that we will not be able to successfully challenge abortion restrictions, including this restriction, under that.”
Reynolds praised the Iowa court’s ruling Friday.
“Today’s ruling is a significant victory in our fight to protect the unborn,” Reynolds said in a news release. “The Iowa Supreme Court reversed its earlier 2018 decision, which made Iowa the most abortion-friendly state in the country. Every life is sacred and should be protected, and as long as I’m governor that is exactly what I will do.”
Today’s ruling is a significant victory in our fight to protect the unborn. The Iowa Supreme Court reversed its earlier 2018 decision, which made Iowa the most abortion-friendly state in the country.
— Gov. Kim Reynolds (@IAGovernor) June 17, 2022
Some of Reynold’s appointments came after the governor signed a law changing the state’s justice selection process. Where Iowa’s justices were previously selected from a non-partisan commission, the governor now has more control over naming commission members.
Republican governors appointed six of the seven current Iowa Supreme Court justices.
Iowa House Democratic Leader Jennifer Konfrst called the ruling a “step backwards.”
“Iowans should always have the final say in making their own healthcare decisions, including abortion, without interference from politicians,” Konfrst said in a statement. “Like a large majority of Iowans, I believe in reproductive freedom because everyone deserves the right to decide when to start a family.”
The September 2021 Des Moines Register/Mediacom Iowa Poll found 57% of Iowans say abortion should be legal in most or all cases.
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