Last week, the legal challenge to Iowa’s new near-total abortion ban ended. On Thursday, the ACLU of Iowa filed a petition in Polk County District Court asking Judge Jeffrey Farrell to dismiss the lawsuit it filed in July 2023 on behalf of the Emma Goldman Clinic, Planned Parenthood of the Heartland (PPH) and its medical director, Dr. Sarah Traxler. Judge Farrell dismissed the case without prejudice, meaning it could be filed again, but that’s extremely unlikely to happen for the same reason the plaintiffs withdrew.
In its 4-3 decision on June 28 upholding the state’s new abortion ban, the Iowa Supreme Court decided the “rational basis” test is the correct legal standard to use in cases involving reproductive rights. It is the lowest level of judicial scrutiny, and almost any law passed by a legislature can be upheld as constitutional using it. That decision all but guaranteed any challenge to the ban would fail.
That decision was also a sharp reversal from the Iowa Supreme Court’s 2018 ruling that found the right to an abortion was a fundamental right under the Iowa Constitution, and any restrictions on it should be subject to “strict scrutiny,” the highest level of judicial review.
“Autonomy and dominion over one’s body go to the very heart of what it means to be free,” then-Chief Justice Mark Cady wrote in the 2018 decision. “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.”
In that case, the court struck down as unconstitutional an abortion ban almost identical to the one that went into effect in Iowa last month.
But in a 2022 case, the Iowa Supreme Court backed away from that precedent, upholding a medically unnecessary 24-hour waiting period for abortions signed into law by Gov. Reynolds. In that case, the court reduced the standard of review for abortion restrictions to an intermediate level, the “undue burden” standard. Undue burden had been established as the minimum standard of the review for abortion regulations by the U.S. Supreme Court in its 1992 Casey decision.
“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,” Chief Justice Susan Christensen wrote in her dissent in the 2022 case.
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.”
Christensen noted there have been no changes to the Iowa Constitution or in the court’s interpretation of the rights it guarantees 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 were replaced by justices appointed by Gov. 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.” In July 2023, Reynolds signed the six-week abortion ban into law at the annual summit meeting of the Family Leader.
At that time, the governor had only appointed two of her four justices. The 2022 Iowa Supreme Court decision on the 24-hour waiting period, which reduced the standard of judicial review for abortion restrictions to the undue burden test, was one of the final cases for Justice Brent Appel. Appel was about to turn 72, the mandatory retirement age for Iowa Supreme Court justices. He was the last justice appointed by a Democratic governor.
But even more important than Reynolds appointing her fifth justice to replace Appel was a U.S. Supreme Court ruling one week after the Iowa Supreme Court’s 2022 decision.
On June 24, 2022, the Republican-appointed majority on the U.S. Supreme Court handed down its decision overturning Roe v. Wade and Casey, eliminating federal protection for abortion, and thereby “Rescinding an individual right in its entirety… for the first time in history,” as Justice Elena Kagan said in her dissent.
The undue burden test for abortion restrictions remained in place in Iowa, however, so when the constitutionality of the six-week abortion ban passed in a one-day special session in July 2023 was challenged by the Emma Goldman Clinic, PPH and Dr. Trexler, a district court judge issued an injunction stopping its enforcement because it likely violated the undue burden standard.
The Reynolds administration appealed the decision to the Iowa Supreme Court. On June 28, the final day of its 2023-24 term, the court handed down its ruling. The four-judge majority ordered the injunction lifted, and reduced the standard of review for abortion restrictions to the rational basis test, the same level of judicial scrutiny used for minor governmental regulation like parking ordinances.
In a written statement about the decision to ask that the challenge to the six-week abortion ban be dismissed, Ruth Richardson, president and CEO of Planned Parenthood North Central States (PPNCS) — which included PPH — said “the heartbreaking reality is that continuing this case at this moment would not improve or expand access to care.”
“We remain focused on providing abortion care to Iowans within the new restrictions, and helping those who are now forced to travel across state lines access the care and resources they need to have control over their bodies, lives, and futures.”
On Thursday, as PPH and the other plaintiffs were asking for their lawsuit to be dismissed, Planned Parenthood Advocates of Iowa PAC (PPAI PAC) announced it was “investing $250,000 in Iowa this election cycle — more than double what it spent in the 2022 election — to build towards a pro-reproductive freedom majority at the statehouse.”
“Voters will be reached through volunteer-powered door-knocking and phone-banking programs and a robust digital ad series ahead of the 2024 election. Iowans need to know if they are represented by politicians who believe they are more qualified to make the personal medical decisions of their constituents,” according to a news release from PPAI PAC.
“The legislators who voted to put themselves in the exam rooms of their constituents will be held accountable come November,” Mazie Stillwell, PPAI PAC’s director of Public Affairs, said in the news release. “Iowans deserve elected leaders who will restore and protect their rights and freedom.”
Polling has consistently shown that a majority of Iowans support the right to an abortion, but that hasn’t been reflected in recent elections. In 2016, Republicans secured majorities in the Iowa House and Senate, and have controlled both chambers ever since. In the 2022 election, after the U.S. Supreme Court eliminated the federal protection for abortion rights and Iowa Republican leaders were already working to impose a severe abortion ban, Republicans increased their majorities in the legislature.
Currently, Republicans hold a 64-seat majority in the 100-member Iowa House and control the Iowa Senate by an even larger margin, 34-16.
Iowa is one of four states with a so-called “fetal heartbeat” law that bans almost all abortions after six weeks into a pregnancy. (The name is a medically inaccurate political term, because at six weeks, the embryo is not a fetus and a heart has not yet formed.) The only states with stricter restrictions on abortion are the 14 states that have enacted total bans on abortion since 2022.
