Jul. 23, 2023 8:54 am

The following article was written as an opinion piece and published in The Cedar Rapids Gazette. To read the article on The Gazette’s website, click this link: https://www.thegazette.com/guest-columnists/understanding-abortion-law-in-iowa/

On June 16, the Iowa Supreme Court let stand an Iowa District Court ruling declining to modify a 2019 Judgment granting an injunction against Iowa’s 2018 fetal heartbeat bill as unconstitutional. The District Court ruling was upheld on a technicality. The Supreme Court was tied with three votes to affirm the ruling, because it was too late to change the 2019 Judgment, three votes to resurrect the law, and one Justice abstaining because the law firm she left was involved in the case. One of the usual suspects immediately called for removal of the justices who voted to uphold the 2019 judgment, claiming they went outside their jurisdiction. In fact, the three did the opposite. They merely recognized they had no jurisdiction to change a final judgment that was four years old, and abided by the long-standing judicial recognition of the finality of judgments.

In 2019, a District Court judge permanently enjoined the 2018 fetal heartbeat bill as unconstitutional. The State of Iowa did not appeal that ruling. However, in June 2022, the Iowa Supreme Court narrowed protections for abortion under the Iowa Constitution. A week later the U.S. Supreme Court abolished federal abortion rights. In response Gov. Kim Reynolds decided it was politically safer to try and change the 2019 judgment rather than pass and sign a new fetal heartbeat bill. The three Justices who voted to affirm did not state their position on abortion rights. Rather, they merely recognized there were no legal grounds to modify the 2019 final judgment. The three Justices who voted to affirm are not wide-eyed liberals. In fact, it was widely-reported Justice Edward Mansfield was on President Donald Trump’s list of potential U.S. Supreme Court nominees. It may be more surprising three justices felt it was appropriate to resurrect a law struck down as unconstitutional by a new court decision rather than legislative action. Some might call that “judicial activism.”

There is another unusual procedural aspect with this decision. A District Court judgment subject to an appeal is affirmed as a matter of law as a result of a tie. When that happens the justices rarely provide any written explanation because any explanation is not considered an opinion that is legal precedent. In this case, the three Justices who voted to resurrect the law wrote an explanation, so Justice Waterman also wrote to explain the many reasons why he, Justice Mansfield, and Chief Justice Christensen, had no authority to overturn the final judgment in this case, even though federal and Iowa constitutional law had changed. To better understand what happened, it is appropriate to first review the different standards applicable to review of constitutional objections to statutes, and then address the history of recent Iowa Supreme Court abortion decisions.

There are three standards of review of the constitutionality of statutes. The highest form of review is strict scrutiny which a court applies to laws which infringe upon fundamental constitutional rights. The law is presumptively invalid unless the government can demonstrate it is necessary to achieve a compelling state interest and the means are narrowly tailored to achieve that interest. Another test is the undue burden standard which provides a particular law cannot be too burdensome or restrictive of a right. This was the constitutional test ultimately adopted by the U.S. Supreme Court in 1992 in Planned Parenthood v. Casey, which upheld some restrictions on the right to abortion. The usual standard of review of constitutional challenges is rational basis, where the court determines whether the law is rationally related to a legitimate government interest, with a presumption favoring constitutionality.

A review of recent Iowa abortion decision starts with Planned Parenthood v. Board of Medicine, 865 N. W. 2d 252 (Iowa 2015), a challenge to a rule prohibiting administration of abortion medication by telemedicine. A unanimous Iowa Supreme Court struck down the statute and adopted the undue burden standard. This was followed by Planned Parenthood v. Reynolds, 915 N. W. 2d 206 (Iowa 2018), which struck down a 72-hour waiting period, recognized abortion was a fundamental right under the Iowa Constitution, and adopted the strict scrutiny standard. Justices Mansfield and Waterman dissented. Given Iowa constitutional law, backstopped by the Federal undue burden standard under Casey, the governor declined to appeal the 2019 District Court ruling finding the fetal heartbeat bill unconstitutional.

Last year saw many changes in abortion jurisprudence, first in Iowa, and then nationally. In Planned Parenthood v. Reynolds, 975 N. W. 2d 710 (Iowa 2022), a very divided Iowa Supreme Court upheld a 24-hour waiting period, specifically overruled the 2018 decision and found strict scrutiny did not apply. The Iowa Supreme Court recognized continued application of the undue burden standard was not raised by the Governor and did not address whether that standard should be changed. A week later, the U.S. Supreme Court decided Dobbs.

At this point, the governor and abortion opponents had two choices. A new fetal heartbeat bill could be reenacted when the Legislature next convened. However, the reaction of the electorate to Dobbs and abortion restrictions was evident by August, 2022 when Kansas voters resoundingly defeated abortion restrictions. Shortly thereafter, the governor opted for a politically safer approach, specifically legal action to try and revive the fetal heartbeat bill in Court by trying to modify the 2019 judgment.

The rationale expressed by the justices who voted in June to uphold the 2019 judgment made clear there was no legal basis to modify that judgment and resurrect the 2018 law. Those justices made clear this was a matter for the Legislature and governor. They also gave no opinion as to what standard of review would govern if, or more likely when, abortion rights came before the Court again. Therefore, the undue burden standard adopted in 2015 remained the law of Iowa. While the view of the other three Justices is more predictable, it can’t be predicted whether the full court will follow undue burden or rational basis review.

Regardless, the Legislature promptly reenacted a new fetal heartbeat bill, essentially the same as what was previously enacted, which was signed by the Governor on Friday, July 14. The same day a hearing on a constitutional challenge to the new law seeking an injunction was heard in Polk County District Court.

On Monday, July 17, the Polk County District Court granted a temporary injunction against enforcing the law. A party seeking an injunction must show the likelihood of success on the merits, irreparable harm if the injunction is not granted and that an injunction is warranted balancing the harm a temporary injunction may prevent against the harm resulting from granting the injunction. The District Court recognized undue burden remained the standard in Iowa and properly declined to speculate whether the Iowa Supreme Court would change that on appeal. Therefore, under existing Iowa law, the challenge was likely to be successful. The Court recognized both sides “ … are good, honorable and intelligent people — morally, politically and legally …” but found the existing standard in Iowa tipped the balance in favor of enjoining the law.

The District Court properly made one exception. The new statute directed the Iowa Board of Medicine to adopt rules governing enforcement. The Iowa Supreme Court may abandon the undue burden standard when this case comes before it, and uphold the law. The District Court recognized the medical profession needs more certainty in addressing the circumstances under which physicians can terminate pregnancies to protect the health of the mother. Lack of certainty has adversely affected the health of pregnant women in states that have recently banned abortions, as physicians will error on the side of not performing an abortion, with adverse consequences to a pregnant woman’s health.

Given the recognition the undue burden standard remains the law of Iowa, it is highly likely the District Court will make the injunction permanent after a full trial. Then Iowans will wait to see what standard of review the Iowa Supreme Court will adopt, as that issue will be squarely presented to the court.

Peter C. Riley has practiced law in Cedar Rapids since 1980.