Why the Iowa Supreme Court allowed near-total abortion ban

Abortion is now banned in Iowa before most people know they’re pregnant.

On Friday, June 28, the Iowa Supreme Court ruled 4-3 that Iowa’s near-total abortion should be allowed to go into effect, dissolving the injunction that had blocked it for 11 months.

The ruling will also make abortion restrictions easier to pass in the future.

The four justices in the majority are: Matthew McDermott—who wrote the majority opinion—David May, Dana Oxley, and Christopher McDonald.

Standards for judging abortion bans

The four justices—who were all appointed by Gov. Kim Reynolds—pointed out that abortion is not a fundamental right in either the Iowa Constitution or the US Constitution, and so they can’t judge the ban based on whether it places an “undue burden” on the people who seek abortions.

“Stated simply, we can find no principled basis under our due process precedents to apply the heightened scrutiny of an undue burden test to abortion,” McDermott wrote.

In 2022, the Iowa Supreme Court ruled the Iowa Constitution does not have a fundamental right to abortion, a week before the US Supreme Court overturned the federal right to abortion in Roe v Wade.

He also pointed out that since Dobbs struck down the undue burden standard, no other state has applied it to abortion bans.

Instead, the court said the “rational basis” test should be used. Under this test, the bar is lower for the state to prove it is pursuing legitimate interests in a rational way. It’s the loosest standard.

“The State offers several interests that it asserts are advanced by the fetal heartbeat statute, each of which was recognized by the United States Supreme Court as a legitimate state interest in Dobbs,” McDermott wrote.

The primary interest is “protecting unborn human life at all stages of development,” according to the state. The state also mentions “maternal health and safety,” and anti-abortion scare tactics like preventing “fetal pain,” eliminating “barbaric medical procedures,” and preventing people from discriminating based on the sex, race, or disability of a fetus.

Planned Parenthood asked the court to at least apply “intermediate scrutiny,” which is a standard just higher than rational basis and is often used in equal protection cases. McDermott shot the request down, saying abortion is not a fundamental right under Iowa’s constitution.

Dissents

Chief Justice Susan Christensen and Justices Thomas Waterman and Edward Mansfield dissented.

Christensen’s dissent focused on the way women have historically been discriminated against in Iowa, noting Iowa’s history of abortion restrictions—which McDermott said was a reason why the ban should go into effect—didn’t have any input from women. In fact, women were treated as second-class citizens for most of the state’s history.

“In sum, generations of women in Iowa faced multiple layers of exclusion and discrimination,” Christensen wrote. “Not only did women have no say in the drafting of our state constitution, but they had no input in the statutes being enacted in the state legislature and no ability to vote for the elected officials responsible for these statutes.”

Christensen and Oxley are the only women on the Iowa Supreme Court.

Iowa does have a history of allowing abortion, though, Christensen said. In 1843, when Iowa was still a territory, there were exceptions for the life of the mother.

“For decades, Iowa continued to make an exception to its abortion laws for the life of the mother,” she wrote. “We also gave physicians deference in determining whether an abortion was necessary under the exception…”

Christensen used dozens of pages to show exceptions in the law are unattainable for most people because the reporting requirements for rape and incest are “unrealistic and unfair,” and the medical emergency exception is vague and excludes multiple situations that have come up in other states with abortion bans.

“The construction of this exception contradicts the State’s claim that one of its interests in protecting life—both born and unborn—is the ‘protection of maternal health and safety,’” she wrote.

Christensen repeatedly wrote that if the state of Iowa is primarily interested in protecting human life, any exceptions don’t make sense.

Christensen said the real question, in this case, is not the right to abortion but “whether individuals have the fundamental right to make medical decisions affecting their health and bodily integrity in partnership with their healthcare provider free from government interference.”

Mansfield

Mansfield’s dissent is more in the weeds and deals with Iowa’s legal history. He basically says the Iowa Supreme Court’s 2022 decision did not rule specifically that Iowa Constitution has no right to abortion, but that restrictions should make more effort to strike a balance between the two sides of the issue.

“I disagree that there is no constitutional right of autonomy over one’s own body,” he wrote, and acknowledged the recognized right to refuse medical treatment.

He also notes the practical issues of the law, which is mainly that, under this law, people have very little time to realize they’re pregnant, decide what to do, and schedule and attend their appointments.

“In short, [Iowa’s abortion ban] preserves the theoretical, but not the practical, ability for a woman to have an abortion in Iowa,” Mansfield wrote.

Mansfield also repeated some of Christensen’s points in her dissent, ultimately pointing out that Iowa’s near-total abortion ban really removes all choice from Iowa women.

“The six-week mark does not allow enough time for a woman to make a decision whether or not to carry a pregnancy to term,” he wrote. “The adoption of this timing is not accidental: [the ban] is designed to end, and will end, most abortions in Iowa…. the net effect of the six-week ban is that it forbids many women from ever making a truly voluntary decision to have children or not. That is unacceptable to me.”