Why The Iowa Supreme Court Kept Abortion Legal (For Now)

The Iowa Supreme Court Friday issued its 3-3 decision about whether to lift an injunction on an abortion ban signed into law in 2018.

Because of the split, the 2022 ruling from a Polk County District Court judge not to lift the injunction on the law still stands. Abortion is still legal in Iowa up to 20 weeks. While no formal plan has been announced, Iowa Republican elected officials have vowed to continue their attempts to restrict bodily autonomy.

The bill would have banned abortion before most people knew they were pregnant and when the embryo is barely visible and the gestational sac less than half-an-inch big.

Justice Thomas Waterman wrote an opinion to explain why the justices reached a split. This is because the three justices who decided to lift the injunction explained their thoughts through Justice Christopher McDonald, who wrote the opinion.

Because of the split, these opinions have no legal weight.

Why Justices Didn’t Lift the Injunction

Before he gets into the abortion matter itself, Waterman wrote there was no real reason for them to overrule the district court judge’s ruling because the district court judge didn’t break any rules or overstep.

Waterman laid out some of the other reasons the Court declined to step in.

1. Too much time passed

The six-week abortion ban was ruled unconstitutional shortly after it passed in 2018 because it placed too many barriers in the way of people seeking abortions. The state was also blocked from enforcing the law, and the state didn’t appeal at the time. The judgment was final after 30 days passed.

“In our view, it is legislating from the bench to take a statute that was moribund [near death] when it was enacted and has been enjoined for four years and then to put it into effect,” Waterman wrote.

2. This legislature might not try a six-week ban today

Waterman also acknowledged the Iowa Legislature has changed since 2018 and it’s unclear whether it would pursue another six-week ban and whether voters would stand for a six-week ban today.

“Second, when the statute was enacted in 2018, it had no chance of taking effect. To put it politely, the legislature was enacting a hypothetical law. Today, such a statute might take effect given the change in the constitutional law landscape. But uncertainty exists about whether a fetal heartbeat bill would be passed today,” he wrote.

According to polling in March this year, 61% of Iowans think abortion should be legal in all or most cases. Broadly, 78% of Americans think abortion decisions should be left to a woman and her doctor, not regulated by laws.

To back this up, Waterman pointed out that some members of the legislature wrote to the court (filed an amicus brief) to urge them to adopt a looser standard. But it did not have enough signatures to reach a majority.

3. Iowa lawmakers haven’t tried again

Waterman references the fact that Iowa legislators didn’t try to re-pass the same six-week ban during this year’s legislative session and haven’t voted to approve a constitutional amendment that would explicitly state that abortion is not a fundamental right in the Iowa Constitution.

If the proposed amendment had passed the session this year, it would be on the ballot in 2024 and voters would decide whether to adopt it.

Republicans have been waiting on the result of this case before pursuing new abortion legislation, but Waterman argued they already knew the state’s request had been denied once when the district court judge denied the motion last year.

“Yet the State chose to hold out for the possibility of an expedited, discretionary review and reversal by this court rather than proposing that the legislature reenact the law,” he pointed out.

4. The whole court wasn’t involved

Most important, Waterman considered the fact that Justice Dana Oxley recused herself from the case, and when it comes to abortion the full court should weigh in.

What about Roe?

There was also a question about how strictly the court should examine abortion restrictions now that Roe v. Wade and Planned Parenthood v. Casey have been overturned. Waterman said because the undue burden standard is still in place in Iowa, the injunction should definitely hold and it isn’t the court’s place to change the law.

“Our colleagues can’t escape the reality that PPH IV (the 2018 case) left the undue burden standard in place. And their opinions are silent on what is clear and indeed conceded by the State at oral argument: [the six-week ban] is unconstitutional under that standard.”

Even though the US Supreme Court overruled the undue burden test under the Federal Constitution, Waterman said that doesn’t affect the Iowa Constitution.

“The law as of today has not changed in a way that removes the ‘constitutional defect’ in the fetal heartbeat bill. The undue burden test remains the governing standard under the Iowa Constitution, and the State concedes, as it must, that the fetal heartbeat bill is unconstitutional under that test,” Waterman wrote.

He reiterated that the Iowa Supreme Court has the sole authority to interpret the Iowa Constitution and that all justices agree to that point as stated in a 2021 case called Wright vs State.

Waterman concludes his opinion by asserting that the court’s 2022 opinion (referred to as PPH IV) balances women’s rights to bodily autonomy and the state’s interest in protecting “unborn life” with the undue burden standard.

“In future cases involving new abortion laws, the parties are free to argue for a change in the current undue burden standard, and this court will consider it,” he wrote. “For the reasons explained above, we decline to change that standard today and use the changed standard to revive a statute that was enjoined from taking effect four years ago.”

Finally, he refers back to Wright and its finding that discarded trash has protections in the Iowa Constitution and cannot be used as evidence if seized without a warrant.

“We return to Wright to highlight one more point. It would be ironic and troubling for our court to become the first state supreme court in the nation to hold that trash set out in a garbage can for collection is entitled to more constitutional protection than a woman’s interest in autonomy and dominion over her own body. That would be untenable.”

Read the full decision: https://www.iowacourts.gov/courtcases/18325/embed/AdditionalFile

Nikoel Hytrek
6/16/23

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