How Iowa's 20-week abortion ban could be overturned

Pro-choice advocates were jubilant about the Iowa Supreme Court’s landmark decision striking down a major section of a 2017 anti-abortion law.

However, the other major piece of that law remains in effect: a near-total ban on abortions beyond 20 weeks “post-fertilization.” Speaking to reporters on June 29, American Civil Liberties Union of Iowa legal director Rita Bettis asserted the 20-week ban is “clearly unconstitutional and a violation of women’s fundamental rights.” She declined to say whether the ACLU will challenge that provision: “We don’t forecast our litigation strategy.”

Although I am not an attorney, I am a third-generation supporter of reproductive rights in Iowa. So I’ve been thinking about how a case could get the 20-week ban before the Iowa Supreme Court.

AN IMPORTANT PRECEDENT

It’s hard to overstate the importance of the high court’s 5-2 ruling in Planned Parenthood of the Heartland and Jill Meadows v. Kimberly K. Reynolds ex rel. State of Iowa and Iowa Board of Medicine. When striking down an administrative rule prohibiting telemedicine abortion three years ago, the justices relied on the “undue burden” standard set out in the U.S. Supreme Court’s 1992 Casey decision. They declined to rule on whether our state constitution guarantees a higher level of protection for women.

This time, five justices determined a mandatory 72-hour waiting period for women seeking an abortion “violates both the due process and equal protection clauses of the Iowa Constitution.” They held that limits on a woman’s right to terminate a pregnancy should be subject to “strict scrutiny” and allowed only if the restrictions are “narrowly tailored to further a compelling state interest.”

Legal analysts agreed that Iowa’s 2018 law banning almost all abortions after around six weeks gestation will never pass that legal test. (That statute is on hold pending resolution of a lawsuit filed in Polk County District Court.)

Furthermore, the Iowa Supreme Court’s decision can’t be appealed in federal court, because the majority’s reasoning relied solely on interpretation of the state constitution.

Dissenting Justice Edward Mansfield warned, “The majority’s requirement of ‘strict scrutiny’ and ‘narrow tailoring’—combined with its rejection of Casey’s undue burden standard—would make any abortion restriction very difficult to sustain.” Drake University law professor Mark Kende told the Des Moines Register that Chief Justice Mark Cady’s decision is “pretty much a death knell” for new limits on access to abortion.

WHY THE 20-WEEK BAN HASN’T BEEN CHALLENGED ALREADY

Planned Parenthood of the Heartland filed suit against the 72-hour waiting period before Governor Terry Branstad had even signed Senate File 471 in May 2017. Planned Parenthood, the ACLU of Iowa, and the Emma Goldman Clinic sued to block the so-called “fetal heartbeat” bill ten days after Governor Kim Reynolds signed Senate File 359 last month.

Why hasn’t the state’s largest abortion provider brought a case challenging the 20-week ban?

The answer is that Planned Parenthood’s clinics in Iowa didn’t offer abortion services after 20 weeks. Neither did the Emma Goldman Clinic in Iowa City. Since that portion of the law did not directly affect their standard of care or their patients, those entities would not have standing to challenge it.

Only around 1 percent of abortions happen after 20 weeks. Those terminations are complicated medical procedures, done almost exclusively in hospitals. (A handful of independent clinics around the country provide such services, but none are located in Iowa.)

Many of Iowa’s largest hospitals are Catholic, so don’t perform abortions. Before Senate File 471 took effect, Iowans needing an abortion after 20 weeks most often received care at either the University of Iowa Hospitals and Clinics or facilities in the UnityPoint network.

Neither of those entities would want to get mixed up in litigation over a contentious political issue. OB/GYNs can attest that abortions rarely happen after 20 weeks without some severe medical problem affecting the mother or the fetus. But unlike Planned Parenthood, for which reproductive health care is a core part of the mission, a hospital has little to gain from going to bat for women’s right to make their own medical decisions. Abortion makes up a tiny fraction of the services health care giants offer to patients.

WHO WOULD HAVE STANDING TO SUE?

Cady wrote for the majority in the waiting period case,

Autonomy and dominion over one’s body go to the very heart of what it means to be free. 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.

The court also recognized, “Laws that diminish women’s control over their reproductive futures can have profound consequences for women.” Furthermore, the majority observed that women living in poverty “do not have spare funds at their disposal” to cover additional costs linked to a 72-hour waiting period. Analysis showed how a second trip to a provider could set a woman back hundreds of dollars, due to extra travel and/or child care expenses coupled with lost wages.

Abortion regulations impact different women in many different ways. Womanhood is not a monolith. There are few hurdles that are of level height for women of different races, classes, and abilities. There are few impositions that cannot be solved by wealth. Women of means are surely better positioned to weather the consequences of waiting-period requirements. Yet, it is axiomatic that a right that is only accessible to the wealthy or privileged is no right at all. Accordingly, on our review of the Act, we will measure its constitutionality by “its impact on those whose conduct it affects.”

Traveling to a state where abortion is available later in pregnancy is far more costly than coping with a 72-hour waiting period. One woman who went to Colorado for a third-trimester abortion told me last year,

The procedure alone cost $12,500–similar to the cost of a childbirth. Although her health insurance covered termination, she only got $2,000 reimbursed because the Boulder clinic was out of network. (If she had been able to have the abortion at an Iowa hospital in network, she would have paid nothing beyond the deductible.) Taking into account plane tickets on a day’s notice and a hotel booked at the last minute, she and her husband spent nearly $15,000 out of pocket.

The ideal plaintiff to challenge Iowa’s 20-week ban would be a woman or several women who would have terminated a pregnancy, but for the state law. That could be someone who discovered an unsurvivable fetal anomaly after a routine 20-week ultrasound, or someone who received a life-threatening diagnosis like cancer, for whom the cost of traveling elsewhere for medical care would be prohibitive.

My understanding is the medical crisis would need to be ongoing at the time the case was filed, just like Jane Roe (Norma McCorvey) was pregnant when she sued over her inability to obtain an abortion in Texas. However, the plaintiff would not need to be pregnant when the case reached the Iowa Supreme Court. The U.S. Supreme Court held in Roe v Wade, “Pregnancy provides a classic justification” for making an exception to the usual rule that a case is moot if the controversy no longer exists during the appellate stage of judicial proceedings.

The circumstances that drive women to seek an abortion after 20 weeks can be emotionally devastating, and those who have lived through this nightmare often remember the experience as one of the worst times of their lives. Understandably, few would want to take on the additional stress of launching a lawsuit that could drag on for years.

I welcome feedback from attorneys who have other suggestions for getting a case about the 20-week ban in the pipeline. The sooner such a lawsuit is filed, the better. Justice Bruce Zager, who joined the majority in the 72-hour waiting period case, is retiring in September. If Chief Justice Cady or Justices Brent Appel, Daryl Hecht, or David Wiggins leave the high court for any reason, and Reynolds is elected to a full term this November, the idea that the state constitution protects a woman’s right to choose may become a minority view on the Iowa Supreme Court.

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