The Iowa Supreme Court will soon revisit one of the most politically charged questions of our time.
Last week a Johnson County District Court permanently blocked the state from "implementing, effectuating or enforcing" a law requiring a 24-hour waiting period before all abortions. Judge Mitchell Turner ruled the law unconstitutional on two grounds. The state is appealing the ruling and argues that a 2018 Iowa Supreme Court precedent, which established a fundamental right to an abortion under the Iowa Constitution, was "wrongly decided."
Republican lawmakers planned for this scenario when they approved the waiting period during the waning hours of the 2020 legislative session. They may get their wish, but a reversal of the 2018 decision is not guaranteed.
LAW RULED UNCONSTITUTIONAL FOR TWO REASONS
Judge Turner agreed with the petitioners, Planned Parenthood of the Heartland and its medical director, that the 24-hour waiting period law is unconstitutional because of its substantive terms as well as the process through which it was passed. Full text of District Court ruling:
The court found the 2020 law was passed in violation of Article III, Section 29 of the Iowa Constitution, which states,
Every act shall embrace but one subject, and matters properly connected therewith; which subject shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title.
In a 1990 case, the Iowa Supreme Court determined that the single-subject rule serves three purposes: 1) to prevent logrolling ("when unfavorable legislation rides in with more favorable legislation"); 2) to prevent "surprise when legislators are not informed"; and 3) to keep "citizens of the state fairly informed of the subjects the legislature is considering."
Republican lawmakers tacked the abortion waiting period language onto an unrelated bill less than 24 hours before the end of the 2020 legislative session. Judge Turner noted that the amendment "was passed under highly unusual circumstances" and at great speed despite being not germane to the bill. At least some legislators were surprised by its introduction. And although abortion is "a polarizing and highly controversial topic," the waiting period amendment "was passed with limited to no debate, and without Iowans being given a chance to respond" to it.
The District Court found it "abundantly clear [...] that what occurred in the Iowa Legislature on June 13th and 14th, 2020 was exactly such 'tricks in legislation' and 'mischiefs' that the single-subject rule exists to prevent."
Fundamental right to an abortion
Judge Turner also rejected the 24-hour waiting period for the same reasons the Iowa Supreme Court struck down a 72-hour waiting period in 2018. In that case, five justices held that the Iowa Constitution protects a fundamental right "to decide whether to continue or terminate a pregnancy.” Any limits on that right are subject to strict scrutiny.
Then Chief Justice Mark Cady wrote in the 2018 decision,
Strict scrutiny requires state actions be narrowly tailored to further a compelling state interest. The overwhelming weight of the evidence demonstrates that requiring all women, regardless of decisional certainty, to wait at least seventy-two hours between appointments will not impact patient decision-making, nor will it result in a measurable number of women choosing to continue a pregnancy they otherwise would have terminated without the mandatory delay. The Act, therefore, does not, in fact, further any compelling state interest and cannot satisfy strict scrutiny.
Even if the Act did confer some benefit to the State’s identified interest, it sweeps with an impermissibly broad brush. The Act’s mandatory delay indiscriminately subjects all women to an unjustified delay in care, regardless of the patient’s decisional certainty, income, distance from the clinic, and status as a domestic violence or rape victim. The Act takes no care to target patients who are uncertain when they present for their procedures but, instead, imposes blanket hardships upon all women.
Citing that precedent, Judge Turner found "the overwhelming weight of the evidence demonstrates that requiring all women, regardless of decisional certainty, to wait twenty-four hours between appointments will not impact patient decision-making, nor will it result in a measurable number of women choosing to continue a pregnancy they otherwise would have terminated without the mandatory delay." For that reason, it "cannot satisfy strict scrutiny" and "violates both the due process and equal protection provisions of the Iowa Constitution."
The Iowa Supreme Court could handle the state's appeal in at least four different ways.
OPTION 1: OVERTURN 2018 PRECEDENT, UPHOLD LAW
Iowa House Republican Shannon Lundgren said during last year's debate on the waiting period, "maybe this [law] will provide an opportunity for the courts to rectify the terrible situation that they’ve created here in our state."
Asked about the District Court ruling during a June 23 news conference, Governor Kim Reynolds told reporters, "Certainly we’ll be appealing that decision and we’re pretty confident that we can get the outcome that we’re looking for.”
She has good reason to be confident. Of the five justices who joined the 2018 ruling in Planned Parenthood of the Heartland v Reynolds, only Justice Brent Appel remains on the bench. Justice Daryl Hecht and Chief Justice Cady have passed away, and Justices Bruce Zager and David Wiggins have retired.
The two justices who dissented from the 2018 decision, Edward Mansfield and Thomas Waterman, still serve on the court, along with Appel and four Reynolds appointees: Chief Justice Susan Christensen, Christopher McDonald, Dana Oxley, and Matthew McDermott.
In a 2019 opinion joined by Christensen, McDonald wrote that two previous Iowa Supreme Court rulings "were wrongly decided and should be reconsidered," adding that stare decisis (the idea of adhering to court precedent) "has limited application in constitutional matters." The state cited that opinion in a brief on the current case: "Although Planned Parenthood is binding precedent on this Court, it was wrongly decided, and such arguments could be considered on appeal under principles of stare decisis."
When introducing the 24-hour waiting period amendment in the Iowa House and Senate last June, Republican floor managers read from a script that echoed this part of the Mansfield dissent from 2018:
Waiting periods are not uncommon in Iowa law. We have a three-day waiting period for marriage. See Iowa Code § 595.4 (2018). There is a 72-hour waiting period after birth for adoption. See id. § 600A.4(2)(g). There is a ninety-day waiting period for divorce. See id. § 598.19. All of these waiting periods implicate fundamental constitutional interests in marriage and parenting. The legislature mandated waiting periods to ensure these important life decisions were made after time for reflection. No one can reasonably question the legislature’s power to impose these waiting periods before Iowans begin or end a marriage or give up a newborn baby for adoption. So why can’t the legislature impose a waiting period before an abortion?
A clear majority of courts since Casey have upheld abortion waiting periods under both state and federal constitutions.
Assuming Mansfield and Waterman apply that logic to the current case, and McDonald and Christensen join them, that's already enough votes to reverse the 2018 decision and find a 24-hour waiting period is constitutional. For insurance, they have McDermott, who has been extensively involved with the Republican Party and did legal work for the GOP-controlled legislature as well.
I wouldn't venture to guess how Oxley might view this case. On her application to serve on the Iowa Supreme Court, she wrote,
I do not have an agenda. I believe it is critical for the Supreme Court to set the tone for the Bar by demanding the highest legal analysis while maintaining civility among the Court’s members, even when—particularly when—they disagree. I believe a justice has a duty to consider all sides of an issue openly and without judgment before reaching a decision. […] I believe the Court must jealously guard Iowa citizens’ fundamental constitutional rights without bias. I believe the Court is an institution, not a group of seven individuals, and as such has an obligation to give due respect to stare decisis and the separation of powers between the branches of government. That said, the Court may not blindly apply its prior decisions, but must be vigilant in protecting the rule of law. I believe consensus is important, but should not override a justice’s deeply held legal convictions.
In any event, it seems likely Republicans already have at least four justices willing to overturn the 2018 decision. The 24-hour waiting period would survive under the Casey standard the U.S. Supreme Court created to evaluate abortion restrictions in 1992. Also worth noting: by this time next year, the Supreme Court may have already tossed out Casey and Roe v Wade, allowing states to enact near-total abortion bans.
OPTION 2: APPLY 2018 PRECEDENT, STRIKE DOWN LAW
I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case. [...]
The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.
I wouldn't bet on any Iowa Supreme Court justices taking that approach to the 24-hour waiting period. However, Christensen wrote a 2019 opinion that endorsed a "need for consistency by adhering to our prior holdings." She quoted several other rulings that referred to stare decisis as "important restraint on judicial authority" that should be cast aside only for a "compelling" or "cogent" reason. (In a footnote to last week's decision, Judge Turner cited that opinion by Christensen along with other rulings by the Iowa and U.S. Supreme Courts on the importance of upholding precedent.)
By the same token, Mansfield and Waterman concurred with a 2013 ruling that rested on the 2009 Varnum v Brien decision on marriage equality, even though Mansfield has publicly disagreed with how the court applied the constitution's equal protection language in Varnum. One caveat: in that 2013 case, the state agency being sued didn't object to the Varnum decision. In contrast, the state now contends that Planned Parenthood v Reynolds was wrongly decided.
I don't expect any of the Iowa Supreme Court conservatives to take the Roberts approach here. But there's no question that overturning a landmark decision after only a few years would damage the legitimacy of the court, making it look like a political body favoring Republican policies.
OPTION 3: UPHOLD THE LAW WITHOUT REVERSING THE PRECEDENT
The Iowa Supreme Court could determine that a 24-hour waiting period can survive a strict scrutiny analysis because it is less burdensome than a 72-hour waiting period. The state tried to convince the District Court that the 24-hour law is not the same and wouldn't affect the "fluid abortion industry" (whatever that means) in the same way as the law the Iowa Supreme Court struck down in 2018.
I would be surprised if the justices went down this road. It's hard to see how any waiting period that applies to all Iowans seeking abortions could be construed as narrowly tailored.
In addition, Judge Turner pointed out,
The Iowa Supreme Court recently held, based on a full trial record that included evidence about the effects of mandatory delay laws of various lengths across the country, including research focused on 24-hour waiting periods, these laws do not benefit individuals seeking an abortion or change their minds about their decision. [...]
A large portion of the PPHI Court’s ruling focused on evidence that showed PPH patients would be required to make two trips to a PPH clinic in order to comply with the Act and a two-trip requirement substantially burdens women, especially women without financial means. See id. at 227-42. Importantly, the 24-hour Act currently before the Court still imposes a two-trip requirement, which was already extensively considered by the Iowa Supreme Court. Accordingly, this Court is convinced that research on abortion-related decision-making confirms that waiting periods do not change a woman’s decision to have an abortion.
OPTION 4: PUNT
If a majority of Iowa Supreme Court justices agreed that the 24-hour waiting period amendment was passed in violation of the constitution's single-subject rule, they could strike down the 2020 law without determining whether Planned Parenthood v. Reynolds was wrongly decided.
The Iowa House and Senate just approved a state constitutional amendment that would overturn the 2018 Supreme Court ruling. They wrote the amendment with a nod to Mansfield's dissent from the 2018 decision.
If both chambers of the legislature pass the same legislation again in 2023 or 2024, and a majority of Iowa voters agree that "this Constitution shall not be construed to recognize, grant, or secure a right to abortion or to require the public funding of abortion," then Iowans will have spoken. Conservatives would get the outcome they want without having to jeopardize the Iowa Supreme Court's legitimacy by reversing a recent precedent.
I don't know how the current justices might interpret the single-subject rule. Lawsuits challenging the 2019 changes to judicial selection and the chief justice's term raised similar arguments, but courts never considered those cases on the merits. The Iowa Court of Appeals ruled that the plaintiffs lacked standing to sue, and the Iowa Supreme Court refused to review those decisions.
I would guess the Iowa Supreme Court would be reluctant to strike down a law based on the procedure through which it passed. Iowa legislators have approved other last-minute amendments (some of them far-reaching) that weren't germane to the bills in question. Moreover, the state maintains the 2020 law doesn't violate the single-subject rule, because both portions of it (on withdrawing life-sustaining procedures from a minor child, and on an abortion waiting period) deal with an "expressly identified general subject of 'medical procedures.'"
Any thoughts about how the court might approach this case are welcome in this thread or in private communications, which will be kept confidential.
UPDATE: House Speaker Pat Grassley asserted in a statement provided to Kathie Obradovich, “There was nothing unconstitutional or even uncommon about the legislative process used to pass House File 594. I was pleased to see the Governor will be appealing this decision and I’m confident we’ll get the right outcome to solidify our efforts to protect unborn children.”
Legislators often add policy language in late budget amendments. But it is unusual for them to rewrite a non-controversial bill on the last night of the session, adding provisions on an issue that always arouses intense feelings on both sides.
Top image: Official photo of Iowa Supreme Court justices from July 2020. Front row, from left: Justice Brent Appel, Chief Justice Susan Christensen, Justice Thomas Waterman. Back row, from left: Justice Dana Oxley, Justice Edward Mansfield, Justice Christopher McDonald, Justice Matthew McDermott.