The Iowa Supreme Court has rejected Gov. Kim Reynolds’ request to reconsider its recent abortion decision, keeping in place its instruction to a lower court to use the “undue burden standard” to determine if abortion restrictions violate the rights of Iowans guaranteed by the state constitution.
Reynolds’ petition for a rehearing of a case regarding the state’s newly enforced 24-hour abortion waiting period was part of two-prong legal strategy to further restrict reproductive rights, announced by the governor last week.
In its June 17 decision on the 24-hour waiting period law — passed on a series of party-line votes in 2020 — a four-justice majority on the Iowa Supreme Court discarded precedent and declared there is no fundamental right to abortion guaranteed by the Iowa Constitution. The court also lifted a permanent injunction prohibiting enforcement of the waiting period law issued by a district court, allowing the law to go into effect for the first time. It did not, however, rule on whether a mandatory 24-hour waiting period violates the rights of Iowans. Instead, the justices sent the case back to district court with instructions for the judge to use the undue burden standard as the standard of review.
The undue burden was created by the U.S. Supreme Court in its 1992 decision in Planned Parenthood v. Casey, a case that reconfirmed its determination of a federally guaranteed right to an abortion in the 1973 case of Roe v. Wade. In Casey, the high court ruled that states may impose some regulations on abortion as long as they don’t impose an undue burden by creating a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”
One week after the Iowa Supreme Court decision, a five justice majority on the U.S. Supreme Court discarded half-a-century of precedents to overturn Roe, as well as Casey and all the other cases relying on Roe, ending the right to an abortion previously guaranteed by the U.S. Constitution.
Because the challenge to the 24-hour waiting period is being heard in state court and involves Iowa Constitution and not the U.S. Constitution, the decision overturning Roe and Casey has no immediate impact on the case, or on the instruction by the Iowa Supreme Court that the undue burden test to be used as the standard of review.
Reynolds wanted the Iowa justices to rehear the case in hopes of persuading them to follow the example of the U.S. Supreme Court and eliminate undue burden as the standard of review, replacing it with a lesser standard that would allow almost any abortion restriction to be declared constitutional.
It would have been extremely unusual for the Iowa Supreme Court to rehear such a recent decision. On Tuesday, Chief Justice Susan Christensen rejected the governor’s request on behalf of the court without comment.
The rehearing in the Iowa Supreme Court was necessary for the second prong of the governor’s announced legal strategy to have any chance of succeeding.
In her statement on June 28, Reynolds said that in addition to petitioning for the rehearing she “will request that the Iowa courts lift the injunction against enforcement of Iowa’s fetal heartbeat law.” That law, passed in 2018, never went into effect. A district court issued a permanent injunction blocking it in January 2019, as a clear violation of the Iowa Constitution. At the time, Reynolds declined to appeal the court’s decision.
The governor has yet to explain exactly how she expects the permanent injunction to be lifted. Iowa court procedure gives a party 30 days to appeal a decision, and when Reynolds issued her statement last week, it had been 1,253 days since the injunction was issued. The governor has not even specified what court she would petition, leaving it at a vague “Iowa courts.”
Even if a judge was to reconsider the 2018 law, there is no way it could survive review under the undue burden standard. The law bans almost all abortions after a “fetal heartbeat” can be detected. Electrical activity in the developing heart cells of the embryo (defined as a fetal heartbeat by the law though not, literally or medically, a heartbeat) happens six weeks into a pregnancy, before many people realize they are pregnant. It also contains only very narrow exceptions for victims of rape or incest.
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A person who has been raped must report the rape “to a law enforcement agency, a public or private health agency or a family physician within 45 days,” to be allowed to have an abortion after six weeks. A victim of incest must report being sexually abused to at least one of the same set of authorities within 140 days of becoming pregnant. There is also an exception to allow pregnancies to save the life of a patient.
Despite the rulings by the Iowa Supreme Court and the U.S. Supreme Court, abortion prior to 20 weeks remains legal in Iowa, albeit with the 24-hour waiting period now in place.
If the governor wants to act on her stated belief that abortion should not be permitted in the state after six weeks, she could call a special session of the Iowa Legislature to have it pass a new version of the 2018 law. It is, however, an election year. The governor and the Republican leaders of the Iowa House and Senate are all on the ballot in November. An Iowa Poll conducted last year found 57 percent of Iowans believe abortion should be legal in all or most cases.
So far, Reynolds has said her two-pronged legal strategy makes calling a special session unnecessary. The governor’s office has not yet issued a statement on the Iowa Supreme Court rejecting her request and what that means for her efforts to further restrict reproductive rights.