Country's strictest abortion ban fails first Iowa court test

Iowa’s law banning most abortions after a fetal heartbeat can be detected violates the state constitutional guarantees of equal protection and due process, Polk County District Court Judge Michael Huppert ruled on January 22.

The Iowa Supreme Court will almost certainly agree that the law is unconstitutional. But it is unclear whether the high court will keep its decision grounded in the Iowa Constitution, as the District Court did. If the Iowa Supreme Court strikes down the law citing provisions of the U.S. Constitution, they will open the door to appeal in the federal courts.

“IT IS VIOLATIVE OF BOTH THE DUE PROCESS AND EQUAL PROTECTION PROVISIONS OF THE IOWA CONSTITUTION”

The American Civil Liberties Union of Iowa, Planned Parenthood of the Heartland, and the Iowa City-based Emma Goldman Clinic filed suit last May, soon after Governor Kim Reynolds signed the law. They had asked the District Court to resolve the matter on summary judgment.

Defending the law on behalf of the state after Attorney General Tom Miller declined to do so, the Thomas More Society had argued that the case should go to trial to resolve disputed facts. In particular, attorneys for the state claimed the law “does not ban abortion”; rather, “It simply requires those abortions to be performed during a multi-week period at the beginning of the pregnancy.”

Citing a June 2018 Iowa Supreme Court ruling that found the state constitution protects a woman’s fundamental right to obtain an abortion, Huppert determined that the law approved last May must be subjected to “strict scrutiny,” meaning the restrictions on citizens’ rights must be “narrowly tailored to serve a compelling state interest.”

I enclose below the full text of his decision, along with briefs both sides filed in the case. Lawyers for Thomas More claimed a fetal heartbeat often cannot be detected six weeks into a pregnancy, and sometimes cannot be detected until ten weeks or later. For that reason, “There is significant opportunity to obtain an abortion before the detectable heartbeat would prohibit it.”

But the Polk County judge found “it is undisputed that such cardiac activity is detectable well in advance of the fetus becoming viable.” The state’s attorneys had claimed viability should not be the court’s standard, since the plaintiffs were not citing federal court rulings using that standard. (The Iowa Supreme Court majority explicitly rejected the U.S. Supreme Court’s “undue burden” standard in last year’s ruling.) However, Judge Huppert concluded that analysis of viability

is inherent in the Iowa Supreme Court’s adoption of a strict scrutiny test when determining whether a legislative restriction on a woman’s fundamental right to decide to terminate a pregnancy passes constitutional muster. […]

In summary, it is undisputed that the threshold for the restriction upon a woman’s fundamental right to terminate a pregnancy (the detection of a fetal heartbeat) contained within Iowa Code chapter 146C constitutes a prohibition of previability abortions. As such, it is violative of both the due process and equal protection provisions of the Iowa Constitution as not being narrowly tailored to serve the compelling state interest of promoting potential life.

WHAT HAPPENS AFTER APPEAL?

The state will almost certainly appeal to the Iowa Supreme Court. But two of the five justices who participated in the 5-2 majority ruling on abortion rights last June have since retired. Governor Kim Reynolds already appointed Justice Susan Christensen to replace Bruce Zager and will appoint someone to replace Daryl Hecht by March.

I am confident that the so-called “heartbeat” bill will not survive a challenge in Iowa’s highest court. Even Justices Edward Mansfield and Thomas Waterman, conservatives who dissented from last year’s abortion ruling, joined a 2015 decision that struck down a state ban on “telemedicine” abortions in Planned Parenthood clinics. That proposed rule was much less restrictive than the law being challenged in this case.

But the Iowa Supreme Court’s unanimous 2015 ruling cited the “undue burden” standard established by the U.S. Supreme Court in its 1992 Casey decision. If justices strike down the new law under that standard, rejecting the idea of a fundamental right to an abortion under the state constitution, defenders could appeal in federal court.

Proponents of the law knew it was unlikely to survive a challenge in Iowa courts and spoke openly of using the legislation as a vehicle to overturn Roe v Wade in the U.S. Supreme Court.

Reynolds said in a statement released on January 22, “I am incredibly disappointed in today’s court ruling, because I believe that if death is determined when a heart stops beating, then a beating heart indicates life.”

State Representative Beth Wessel-Kroeschell, the ranking Democrat on the Iowa House Human Resources Committee, called the Polk County court’s decision

a victory for all women because it means women can make their own healthcare decisions with their doctors and families without intrusion from politicians. In ruling the bill unconstitutional, the court made clear that GOP politicians have gone too far. Politicians are not the experts and should not be dictating women’s healthcare decisions. It’s fitting that the Iowa Court ruled on the 46th anniversary of women across the country obtaining the right to make their own health care decisions.

Iowa Senate Minority Leader Janet Petersen said in a written statement,

“The District Court decision sends a strong message to Iowa women that their constitutional rights are important and their health care decisions should be made by them, not politicians.

“The extreme law should have been overturned because it restricted the freedom of Iowa women and girls to care for their bodies and it forced motherhood on them.

“The Governor and legislative Republicans should stop attacking women’s health care. I want Iowa to be known as the safest place in the country to have a baby.”

UPDATE: Several readers are noting that since the Iowa Supreme Court struck down the 72-hour waiting period last year, it should be a much easier call for justices to strike down this law, which would make abortion unavailable early in pregnancy. Let me be more clear about my concern:

  • Five justices held in June 2018 that the Iowa Constitution protects a woman’s right to obtain an abortion. Chief Justice Mark Cady wrote the majority opinion in Planned Parenthood of the Heartland vs. Reynolds II. Justices Brent Appel, Daryl Hecht, David Wiggins, and Bruce Zager joined that opinion.
  • Justices Edward Mansfield and Thomas Waterman dissented in that case. Not only would they have upheld the 72-hour waiting period, they disagreed that the Iowa Constitution’s provisions on due process and equal protection guarantee any right to an abortion.
  • Specifically, Mansfield wrote in his dissent that 72-hour waiting periods have been upheld by other courts, using the U.S. Supreme Court’s “undue burden” standard.
  • Bruce Zager retired in September. For reasons discussed here, I believe Reynolds confirmed Susan Christensen was against abortion rights before appointing her to replace Zager.
  • Daryl Hecht retired in December. I consider it likely that the Republicans on the State Judicial Nominating Commission will send Reynolds at least one candidate who has privately given assurances that s/he opposes abortion rights.
  • That leaves only three justices who concur with the reasoning in Planned Parenthood of the Heartland vs. Reynolds II. When the Iowa Supreme Court hears the appeal of yesterday’s ruling, the two new justices could join Mansfield and Waterman to hold that the state constitution does not protect a woman’s reproductive rights.
  • I still believe a majority on the Iowa Supreme Court would find the so-called “heartbeat” law unconstitutional, because other courts have held similar state laws do not meet the “undue burden” standard. As mentioned above, this ban is much more restrictive than the rule Mansfield and Waterman rejected in 2015.
  • But if the Iowa Supreme Court finds this law violates the U.S. Constitution (using the “undue burden” standard), the law’s supporters could appeal in federal court. Eventually, the case could reach a conservative-dominated U.S. Supreme Court.

    SECOND UPDATE: On January 23 Thomas More Society released this statement from senior counsel Martin Cannon, who argued this case in district court.

    “Despite the Iowa Supreme Court’s decision last year that abortion is a fundamental right, and despite yesterday’s trial court decision, on the anniversary of Roe v. Wade, that the heartbeat bill violates the Iowa Constitution, The Thomas More Society affirms the plain language of that constitution: ‘WE THE PEOPLE OF THE STATE OF IOWA, grateful to the Supreme Being for the blessings hitherto enjoyed, and feeling our dependence on Him for a continuation of those blessings, …All men are, by nature, free and equal, and have certain inalienable rights – among which are those of enjoying and defending life…’ Despite the challenges in the Iowa judicial system, our clients and Thomas More Society attorneys will continue to defend unborn children and those who also defend them. We know that life begins at conception and a heartbeat means a living person is inside the mother’s womb.”

    During the oral arguments in December, I found it strange that Cannon repeatedly insisted the law in question “does not ban a single abortion.” The law’s proponents were clear about their goal: preventing as many women as possible from terminating a pregnancy. While Cannon asserted that women can easily schedule an abortion before a fetal heartbeat is detectable, women with irregular cycles may not realize their period is late right away, and those suspecting a pregnancy often must wait weeks for an appointment with a health care provider.

    In a January 22 news release, ACLU of Iowa’s legal director Rita Bettis Austen hailed Judge Huppert’s ruling as “essential to the rights and safety of women in Iowa.” Planned Parenthood of the Heartland’s medical director, Dr. Jill Meadows, called the decision “a victory for every Iowan who has ever needed or will need a safe, legal abortion. At Planned Parenthood, we’re here to provide nonjudgmental support and factual, medically accurate information so that every patient can make their own personal decision about a pregnancy based on their own values, desires and needs, without political interference.”

    Appendix 1: Ruling by Polk County District Court Judge Michael Huppert, issued on January 22, 2019

    Appendix 2: Motion for summary judgment filed by the ACLU of Iowa and Planned Parenthood Federation of America on behalf of the plaintiffs

    Appendix 3: Initial statement of the case by the plaintiffs in May 2018, asking for an emergency temporary injunction and a permanent injunction against enforcing the law

    Appendix 4: Brief opposing summary judgment, filed by the Thomas More Society on behalf of Governor Kim Reynolds and the Iowa Board of Medicine

    Top image: Polk County courthouse in Des Moines, Iowa, via Shutterstock.com.

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