DES MOINES, Iowa (CN) — The Iowa Supreme Court ruled Friday there is not a fundamental right to abortion under the Iowa Constitution, overruling its own 2018 decision that recognized such a right.
As a result, the Iowa Legislature is now free to impose tighter restrictions on abortion, including an outright ban, depending on what the U.S. Supreme Court does in a case that could overturn Roe v. Wade.
In Friday’s ruling, the Iowa justices said they "are not blind to the fact that an important abortion case is now pending in the United States Supreme Court,” referring to Dobbs v. Jackson Women’s Health Organization.
“While we zealously guard our ability to interpret the Iowa Constitution independently of the Supreme Court’s interpretations of the Federal Constitution, the opinion (or opinions) in that case may provide insights that we are currently lacking," the ruling states. "Hence, all we hold today is that the Iowa Constitution is not the source of a fundamental right to an abortion necessitating a strict scrutiny standard of review for regulations affecting that right." (Parentheses in original.)
That means that the undue burden test, which the U.S. Supreme Court established in its 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, “remains the governing standard” in Iowa. the court said.
The seven-member court was splintered on different sections of Friday’s decision, which covered 182 pages. Only two justices argued in dissent that the court's 2018 decision recognizing a fundamental right to abortion should have been upheld, either on the merits or because of stare decisis, a legal doctrine under which courts follow earlier judicial decisions when the same points again arise in litigation.
Iowa Governor Kim Reynolds, a Republican, applauded the court’s decision.
“Today’s ruling is a significant victory in our fight to protect the unborn,” she said. “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.”
"The Court's decision today is a devastating and shocking reversal,” Rita Bettis Austen, legal director for the ACLU of Iowa, said in a news conference Friday. But Austen, and a spokesperson for Planned Parenthood of the Heartland, the plaintiff in the case, emphasized that “abortion remains legal in Iowa” under the Iowa Constitution, even in light of the Iowa Supreme Court decision.
The Iowa law that requires a woman seeking an abortion to wait 24 hours before receiving one is now enforceable following Friday’s ruling, which lifted the lower court’s injunction. The case now goes back to the trial court, which will decide the legality of the waiting period requirement applying the “undue burden” standard adopted by the U.S. Supreme Court in the Casey decision.
The ACLU and Planned Parenthood pledged to continue the fight.
“With the constitutional right to abortion under Roe threatened, Iowans are relying on the protection of our state constitution," said Bettis Austen. "The right to abortion for Iowa women is essential to their freedom, equality, health, and safety, and it's something that Iowans overwhelmingly support — now, more than ever. The government should not have the power to interfere with a woman's decisions about her own body, or with her decisions about whether, when, and how to start a family."
The Iowa Supreme Court ruled four years ago that the Iowa Constitution protects the fundamental right of a woman to choose whether to terminate a pregnancy, which brought to a temporary halt efforts by the Republican-dominated Iowa Legislature to curb or even ban abortion in the state.
The case for reversing the 2018 abortion decision came in an appeal of a trial court ruling striking down a state law that required a physician to obtain informed consent from a pregnant woman at least 24 hours before performing an abortion. The lower court said the 24-hour delay was no different than an earlier version of the law that mandated a 72-hour delay, which the Iowa Supreme Court had ruled unconstitutional in a case brought by Planned Parenthood.
Informed consent, as required by the original state law mandating a 72-hour delay prior to receiving an abortion, required a woman seeking an abortion to undergo an ultrasound, be given the opportunity to view the ultrasound image of the fetus and to hear a heartbeat, and to be given information about abortion alternatives. The statute made no exceptions for rape or incest victims, or for cases where the fetus has a severe fetal abnormality.
That mandatory delay violated a woman’s constitutional rights to due process and equal protection, the Iowa Supreme Court held, based on the Iowa Constitution, not on U.S. Supreme Court abortion precedents. And the justices held that the challenged law failed under strict scrutiny rather than the less demanding undue burden standard.
The court said the 72-hour delay imposed an unconstitutional burden on Iowa women by requiring two trips to an abortion clinic, a particular burden for low-income women and those in rural areas living far from Planned Parenthood’s two Iowa abortion clinics. The court also found the delay would push some women beyond the 20th week of a pregnancy, after which surgical abortions are prohibited by state law, or beyond 10-week window for a medication abortion.
In a brief filed with the justices, the state argued the court's prior decision was “demonstrably erroneous” because “nothing in the text, structure, history, or tradition of the Iowa Constitution makes abortion a fundamental right.”
The 2018 ruling was written by Chief Justice Mark Cady and joined by Justices Brent Appel, David Wiggins, Daryl Hecht, and Bruce Zager – all of whom, with the exception of Appel, have since been replaced on the Court. Justice Edward Mansfield wrote a dissenting opinion joined by Justice Thomas Waterman. Both of them remain on the court.
Friday’s ruling comes in the state’s appeal from a Johnson County District Court decision permanently enjoining enforcement of a 2020 state law that required a physician performing an abortion to obtain informed consent from the pregnant woman at least 24 hours before performing the procedure. The district court held the legislation violated the Iowa Constitution’s single-subject rule by incorporating the waiting-period provision with a separate provision regulating the withdrawal of life-sustaining medical procedures from a minor child over the objection of the parent or guardian.
Article III, Section 29 of the Iowa Constitution provides that every legislative act "shall embrace but one subject, and matters properly connected therewith; which subject shall be expressed in the title.”
The trial court said that in light of its ruling that the 2020 law violated the single-subject rule, it was not necessary to address Planned Parenthood’s claims that the waiting-period statute violated due process and equal protection under the Iowa Constitution. Yet, it nonetheless concluded that the waiting-period provision is unconstitutional under the state high court's 2018 decision, and the state was barred from “relitigating that case” because the two cases involved “identical issues.”
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