Note: The term “woman” and she/her pronouns are occasionally used in this article to refer to a hypothetical pregnant person seeking abortion. In reality, this person could be a woman, child, nonbinary person or transgender man.
The recent Supreme Court decision in Dobbs v. Jackson Women’s Health overturning Roe v. Wade left the right to abortion care for the states to determine.
In response to Dobbs, Iowa was one of 26 states across the country expected to impose new abortion legislation. While the strictest laws took effect immediately upon the Dobbs decision, like Missouri’s ban on all elective abortions, Iowa has yet to substantially alter their abortion laws. The state has, however, passed a 24-hour waiting period requirement and is expected to limit elective abortions to the first six weeks of pregnancy.
The current state of abortion legislation in Iowa
Abortions are currently permitted in the state of Iowa up to 20 weeks’ gestation, but not without barriers.
Iowa recently imposed a 24-hour waiting period on pregnant people seeking abortion care, accompanied by other requirements typical of such legislation. Namely, patients must undergo an ultrasound, have the option to see the image and hear the sounds associated with the procedure, and be advised on options other than abortion available to her.
In its plain reading, the legislation attempts to pressure a woman into choosing to continue with pregnancy by appealing to her emotions. In reality, the legislation is an illogical barrier motivated by an outdated misconception of women and their emotional capacity. Simply put, a forced ultrasound and guilt trip cannot change all the factors in a person’s life that guide their decision to terminate pregnancy.
If Iowa maintains its position that elective abortions are permitted within the first 20 weeks of pregnancy, the 24-hour waiting period is unlikely to prevent every person seeking an abortion from receiving one. For those with sufficient resources, living close to an abortion clinic, the waiting period will amount to nothing more than an inconvenience. For others who lack financial or job security or live in remote parts of the state, the waiting period could be devastating. There is no shortage of tragic scenarios that could arise from a pregnant person being unable to receive the abortion care she desires.
Moreover, Iowa is expected to impose a ban on abortions after six weeks of pregnancy. In 2018, Gov. Kim Reynolds signed into law a six-week ban under the so-called “fetal heartbeat bill.” But upon review by the court, the bill failed to pass the initial summary judgment phase. The Iowa Supreme Court held that abortion care is protected by the Iowa Constitution, and any laws restricting abortions would be reviewed under the high standard of strict scrutiny.
However, Iowa courts are now determining whether to apply a lesser standard of review. In the Roe v. Wade holding, the United States Supreme Court determined that there was a right to abortion protected under an implicit right to privacy in the Constitution. Laws challenging this privacy right were originally reviewed under the high standard of review of strict scrutiny and later under the undue burden test. Both standards of review are much higher than the rational basis standard Iowa courts are now considering in the wake of Dobbs overturning Roe. Under a rational basis review, legislation must only be rationally related to the state’s interest in “protect[ing] the unborn.”
This lower standard of review greatly increases the likelihood of the six-week ban being reinstated. Such a ban is an extreme restriction on abortion care considering that pregnancy is measured by weeks from the date of a patient’s most recent menstrual cycle, not from the date of fertilization or implantation. By the time a patient notices a late period, she will already be at least four weeks pregnant, leaving her with two weeks at the very most to decide on and effectuate termination. However, one in three women find out they’re pregnant after six weeks’ gestation.
Applying the new 24-hour mandatory waiting period, the timeline a pregnant person would have to legally effectuate abortion could be limited to just a few days at most. Therefore, if the six-week ban is eventually determined to be rationally related to the state’s interest in protecting the unborn, it will effectively function as an elective abortion ban.
In strong resistance, abortion activists are advocating for people to seek self-managed abortions because of the speed and convenience telehealth and at-home procedures provide.
Self-managed abortions will always be accessible, even if Iowa imposes a six-week abortion ban
Self-managed abortion refers to an abortion induced in the first 10 weeks of pregnancy by taking mifepristone and misoprostol, two FDA-approved drugs known collectively as “abortion pills.”
Despite these drugs being safer than Tylenol and meeting many of the FDA’s criteria to be available over the counter, mifepristone and misoprostol are available only with a prescription from a physician.
In late 2021, the FDA decided that abortion pills would be available through telehealth, permanently removing the in-person dispensing requirement. Patients could reach physicians and get prescriptions for mifepristone and misoprostol right from their phones by accessing companies like Plan C, Aid Access, Carafem, Just The Pill and Hey Jane online.
Regardless of the state their patients live in, each company ships abortion pills directly to their patients’ homes. Yes, some of these companies even ship to states with the strictest abortion laws in the country, including to states that ban elective abortions entirely.
Telehealth abortion care was formerly a convenient, discrete and legal method of accessing abortion care. However, with rapidly evolving abortion legislation, the legality of self-managed abortions is undetermined. If Iowa reinstates the six-week ban, abortion pills by mail may include a risk of prosecution with shipment.
Could Iowans face prosecution for accessing self-managed abortions online?
In a telehealth setting, the state in which a patient lives controls the abortion laws that apply. In Iowa, the 24-hour mandatory waiting period would require a patient seeking abortion to schedule a telehealth appointment only after first undergoing an ultrasound at an in-person clinic and providing certification of such to her telehealth provider. The required ultrasound appointment and 24-hour waiting period places more pressure on the already tight 10-week timeline for self-managed abortions.
If abortions remain legal up to 20 weeks in Iowa, it is still possible for many Iowans to overcome the state’s legislative hurdle and receive abortion care.
If, however, Iowa imposes a six-week ban, seeking self-managed abortions via telehealth would not be legal past six weeks’ gestation, nor reasonably feasible within that timeline. So, if telehealth physicians act outside of the governing law and choose to provide Iowans with abortion pills after the six-week mark, they open themselves up to legal liability.
That doesn’t seem to be stopping companies from shipping abortion pills to anyone who needs them. In fact, to protect American physicians from liability, many companies that provide abortion pills online connect people seeking self-managed abortions with foreign physicians willing to ship internationally. While illegal, overseeing foreign physicians and attempting to regulate their practice is not practical nor is it an efficient use of government resources.
Moreover, as of now, there are no known prosecutions for the purchase and shipment of abortion pills. While charges have been brought for the subsequent abortion offense in a few instances, this is not yet the norm. In fact, some prosecutors are pledging to not bring criminal charges against those who seek out self-managed abortions. Even some governors across the country are publicly saying that despite laws prohibiting abortion pills, women will not be prosecuted for self-managed abortions.
Unfortunately, Gov. Reynolds is unlikely to make any such assurances to Iowans. Even if Iowa prosecutors join the movement and promise a safe harbor for abortion seekers, a mere promise falls short of any real, widespread security from prosecution, absent actual corresponding legislation.
Abortion activists find support from an unlikely source — the pharmaceutical industry
It’s not just activists resisting the fallout of the Dobbs decision. States now have the pharmaceutical industry to be worried about. In the wake of Dobbs, GenBioPro, Inc., the manufacturer of mifepristone, brought an action against the state of Missouri alleging that its ban on all elective abortions, including self-managed abortions by use of abortion pills, is preempted under the FDA’s 2021 decision permitting abortion pills to be dispensed online.
The case, GenBioPro, Inc. v. Dobbs, may be the reassurance women are hoping for—federal preemption of a state law prevents that state law from being enforceable. If the court decides that Missouri’s elective abortion ban is preempted under the FDA’s 2021 decision, Missouri will no longer be allowed to enforce the ban.
Previous cases brought by drug manufacturers challenging state regulation of a manufactured drug have been successful, including the Zogenix, Inc. v. Patrick case out of Massachusetts. The Zogenix case arose when Massachusetts legislation attempted to regulate an FDA-approved opioid. The court there held that strict regulation of an FDA-approved drug was preempted and, therefore, unenforceable.
If the court has already held that merely strict state regulation of an FDA-approved drug gives rise to preemption, an outright ban of FDA-approved drugs, like Missouri’s ban on mifepristone and misoprostol in the GenBioPro case, strongly tilts toward preemption. Even a strict time restricted ban, like the six-week abortion ban anticipated to be reinstated in Iowa, could foreseeably indicate preemption under Zogeix.
With further abortion restrictions looming over the state of Iowa, accessibility to self-managed abortions remains uncertain. However, pending the GenBioPro decision, we might not have to worry about it after all.
A shorter version of this article was originally published in Little Village issue 309.