Iowa Supreme Court slashes abortion rights protections, Reynolds calls decision ‘a significant victory’

Hundreds march through Gilbert Street chanting, “Right-to-Life your name’s a lie. You don’t care if people die!” during the May 14, 2022 “Bans Off Our Bodies” protest. — Adria Carpenter/Little Village

Just four years after its landmark decision establishing the fundamental right to an abortion as not only protected by the Iowa Constitution, but having greater protection under the state constitution than under the U.S. Constitution, the Iowa Supreme Court ruled on Friday that the right is not in the Iowa Constitution, allowing a state-mandated 24-hour waiting period for abortions to immediately take effect.

“Abortion remains legal in Iowa, and that’s really important for people to know,” ACLU of Iowa Legal Director Rita Bettis Austen said during a news conference following the decision.

The ACLU of Iowa is representing Planned Parenthood of the Heartland and Dr. Jill Meadows, an OB-GYN, in a lawsuit challenging the mandatory 24-hour waiting period between doctor’s appointments before an Iowan can have an abortion, signed into law by Gov. Kim Reynolds in 2020. Whether this waiting period violates the rights of Iowans guaranteed by the state constitution was the issue at stake in the court’s ruling on Friday.

“The waiting period does nothing to improve the health of Iowans, and serves a narrow political agenda that goes against the will of a majority of Iowans who support safe and legal abortion,” Sheena Dooley, communications director for Planned Parenthood of the North Central States, said at the news conference.

Dooley explained the waiting period “disproportionately affects people in already marginalized communities that currently struggle to get the care that they need.”

Even though Reynolds signed the bill creating the waiting period in 2020, the law was never in effect until Friday morning. In 2020, a Johnson County District Court judge issued a temporary injunction against the new law one day before that restriction on abortion was scheduled to begin.

The 24-hour waiting period requirement was introduced on the final day of the 2020 legislative session, and Republican leaders quickly pushed it through both the Iowa House and Senate on a series of party-line votes. It was inserted into another bill that dealt with the withdrawal of medical intervention needed to sustain the life of a critically ill child. That bill passed the House and Senate in an extraordinary extended session that lasted into the early hours of a Sunday morning. After it passed, the Iowa Legislature adjourned for the year.

In its lawsuit, the ACLU of Iowa argued the waiting period law was invalid for two separate reasons. First, it violated the provision in Iowa Code that requires bills to be about a single topic. More importantly, it violated an Iowan’s rights under the state constitution.

In a 2018 decision striking down a 72-hour waiting period signed into law by Gov. Terry Branstad, the Iowa Supreme Court ruled any restrictions on abortion must pass the highest standard of judicial review — strict scrutiny — because reproductive freedom is a fundamental right in Iowa.

Strict scrutiny requires a law or regulation be “narrowly tailored” to achieve a “compelling state interest.” Few laws pass this test, which is why it is reserved for those impacting fundamental rights.

In its 1992 decision in Planned Parenthood v. Casey, the U.S. Supreme Court ruled that that even though the right to an abortion is protected by the U.S. Constitution, laws designed to regulate weren’t subject to strict scrutiny, but only needed to not impose an “undue burden” by creating a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”

In 2018, Chief Justice Mark Cady, writing for the majority, laid out why the Iowa Constitution offered a greater level of protection.

“Autonomy and dominion over one’s body go to the very heart of what it means to be free,” Cady wrote. “At stake in this case is the right to shape, for oneself, without unwarranted governmental intrusion, one’s own identity, destiny, and place in the world. Nothing could be more fundamental to the notion of liberty.”

District Court Judge Mitchell Turner explained he was bound by that decision in the temporary injunction ruling in 2020. Turner also agreed that legislators had violated the one-bill-one-subject rule by adding the waiting period to a bill about end-of-life care for terminally ill children. Turner later issued a summary judgment in favor of Planned Parenthood and Meadows, and made the injunction permanent.

The Reynolds administration appealed Turner’s decision.

Writing for a fragmented majority, Justice Edward Mansfield completely overturned Turner’s decision. He found that since both the original bill and the amendment containing the 24-hour waiting period dealt with medical procedures, that was enough to declare they were a single subject. But of greatest significance was Mansfield’s flat rejection of “a fundamental right to an abortion in Iowa’s Constitution.”

Mansfield, however, backed away from making a firm decision on the legal status of abortion in Iowa.

“Although we overrule PPH II [the court’s shorthand designation for the 2018 case] and thus reject the proposition that there is a fundamental right to an abortion in Iowa’s Constitution subjecting abortion regulation to strict scrutiny, we do not at this time decide what constitutional standard should replace it.”

A demonstrator holds a sign referencing the Iowa state motto during a pro-choice rally on the University of Iowa Pentacrest, Friday, May 17, 2019. — Zak Neumann/Little Village

The supreme court sent the case back to the district court, with instructions for the judge to use the undue burden test, noting the justices had used that standard in an abortion case prior to the 2018 decision.

By invoking the undue burden test used in Casey, Mansfield was acting in accordance with an argument made by the Reynolds administration in its brief. The governor’s lawyers asked the court to apply the lowest standard of legal review to the waiting period law — “rational basis review,” which validates almost all laws — or failing that, “this Court could choose to follow Casey.”

Chief Justice Susan Christensen pushed back strongly against the majority in a separate opinion. Although she agreed the bill didn’t violate procedural requirements, Christensen said, “I do not believe any special justification ‘over and above the [majority’s] belief ‘that the precedent was wrongly decided’ warrants such a swift departure from the court’s 2018 decision.”

The chief justice warned, “The legitimacy of judicial review hinges in part on the public perception that we are applying the rule of law regardless of our personal preferences instead of merely engaging in judicial policymaking.”

As Christensen noted there have been no changes to Iowa Constitution or in the court’s interpretation of the rights it guarantees in the last four years to warrant the complete rejection of the 2018 decision. Left unsaid was the fact that there has been a major change in the makeup of the court.

Three of the court’s seven members who participated in the 2018 decision have retired, and Chief Justice Mark Cady died unexpectedly in November 2019. All four have been replaced by justices appointed by Gov. Kim Reynolds.

Speaking in 2019 at a state meeting of the Family Leader, a rightwing Christian activist group, Reynolds boasted “the tide is turning in Iowa’s Supreme Court. In just two short years, we’ve moved the needle from left to right.”

At that time, the governor had only appointed two of her four justices.

On Friday, Reynolds issued a written statement, praising Mansfield’s decision.

“Today’s ruling is a significant victory in our fight to protect the unborn. 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.”

Both Mansfield and Christensen referred to the pending U.S. Supreme Court decision on abortion in their opinions. In a leaked draft of the majority opinion, Justice Samuel Alito aggressively declared there is no constitutional right to decide whether to carry a pregnancy to term — regardless of what stage the pregnancy is in, if the fetus is viable or if the pregnancy is the result of rape or incest — if a state government or the federal government decides abortion is illegal. The draft opinion overturns both Roe v. Wade and Casey, the case that provided the standard Mansfield directed the district court to use.

Overturning Roe and Casey would not have an impact at the district-court level in the lawsuit, because it is a state court case governed by the Iowa Constitution. But that would likely change when the case returns to the Iowa Supreme Court, Mansfield said.

“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 [pending] case may provide insights that we are currently lacking,” he wrote.

For Christensen, the looming U.S. Supreme Court decision won’t “provide insights,” it will instead create more uncertainty, adding to the uncertainty created by the decision of four of her fellow justice to switch the level of scrutiny Iowa courts must apply to abortion regulations.

“Current state and federal constitutional abortion jurisprudence is like a game of Jenga, progressively becoming more unstable until it collapses,” she wrote. “Before today, the standard applied to our constitutional analysis of abortion regulations was strict scrutiny. Now, the standard changes back to the federal undue burden test only for so long as it takes for the parties to go through the adversarial process and come before us again, when we may once again decide upon a different standard. Add to this the potential change in the federal constitutional landscape and the ongoing constitutional amendment process, and Iowans are left with no stable state or federal abortion law.”

The only justice to completely dissent from Friday’s decision was Brent Appel. Since Mansfield invokes the undue burden test of Casey, Appel started his dissent by quoting from the majority decision in that case: “Liberty finds no refuge in a jurisprudence of doubt.”

Appel, whose was part of the majority that decided the 2018 case, went on to state that “by rejecting the holdings in a 5–2 majority decision in [PPII] decided only a few years ago in a nearly identical issue, and punting the case back to the district court, the court creates a jurisprudence of doubt about a liberty interest of the highest possible importance to every Iowa woman of reproductive age.”

Anne Bendixen dresses as a handmaiden, from Margaret Atwood’s The Handmaid’s Tale, at the Bans Off Our Bodies protest, on Saturday, May 14, 2022, in Iowa City. – Adria Carpenter/Little Village

This will be the last time Appel participates in a major decision. He will reach the court’s mandatory retirement age of 72 this summer, and has already decided to resign, effective July 12. Appel was appointed to court in 2006 by Gov. Tom Vilsack, and is the last remaining justice placed on the court by a Democratic governor. His resignation will give Gov. Reynolds the opportunity to appoint her fifth justice.

“The next step in this case is for us to go back to the district court, and continue our challenge under the undue burden standard,” the ACLU of Iowa’s Bettis Austen said on Friday. “We’re committed to protecting abortion access and we’re not giving up this fight.”

Dooley said that “despite the weight we’re feeling today after the ruling,” Planned Parenthood would continue to provide services and care for its patients. But the nonprofit now must find a way to work within the new requirement that anyone seeking an abortion has to have an extra doctor’s appointment 24 hours before the procedure.

“We know we have a long, hard road ahead of us in protecting reproductive freedom in Iowa,” she said. “But it’s important that Iowans know that we are standing by them and we will never stop fighting for reproductive freedom in this state.”

“Now is the time that Iowans need to do everything they possibly can to have their voices heard. Iowans need to march, mobilize, organize, text, call, write — do anything and everything we possibly can to protect our reproductive freedom that’s now hanging by a thread.”

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