Five Iowa Supreme Court justices allowed a 24-hour waiting period for all abortions to go into effect and opened the door to more sweeping restrictions on June 17, when justices overturned the court's 2018 precedent that had found the Iowa Constitution protects a fundamental right to seek an abortion.
The outcome is precisely what Republican legislators were seeking two years ago, when (buoyed by unusually rapid turnover on Iowa's highest court) they passed a law nearly identical to the one struck down in the 2018 case.
Two dissenting justices warned that the latest decision injects "instability" and "confusion" into Iowa's legal landscape, because the court's majority did not establish a new standard for evaluating the constitutionality of abortion restrictions. Two justices signaled they would allow almost any limits on the procedure. Three justices indicated they might be open to a similar approach, or might strike a different balance that recognizes some bodily autonomy for Iowans wanting to terminate a pregnancy.
In the words of Justice Brent Appel, the majority set forth "a jurisprudence of doubt about a liberty interest of the highest possible importance to every Iowa woman of reproductive age."
The ruling may also undermine public confidence that Iowa Supreme Court rulings are grounded in legal analysis, rather than politics.
WAITING PERIOD IN EFFECT PENDING FURTHER LITIGATION
The full text of the Iowa Supreme Court opinions in Planned Parenthood of the Heartland v. Kim Reynolds IV can be downloaded here. I've enclosed the 182-page document at the end of this post as well. There's a lot to unpack, with a majority opinion running for more than 60 pages, two partial concurrences, and a dissenting opinion spanning more than 80 pages.
Justice Edward Mansfield wrote for the majority, joined in full by Justices Dana Oxley and Thomas Waterman, and mostly joined by Justices Matthew McDermott and Christopher McDonald. They held that in the 2018 case known as Planned Parenthood of the Heartland v. Kim Reynolds II, the court got it wrong in finding that a 72-hour waiting period for abortion violated the due process and equal protection clauses of the Iowa Constitution. The five justices found no textual support for reading the due process clause to protect abortion as a fundamental right.
Furthermore, the majority argued, "Under our well-established equal protection precedent, before finding a violation, we first needed to find that women were similarly situated to men as it related to the purposes of the law." Since women and men are not "similarly situated" in the capacity to get pregnant, a waiting period for abortion cannot be said to discriminate against women and favor men.
The immediate impact is to allow the state to enforce a 24-hour waiting period for all abortions. That requirement, enacted in 2020, had not previously gone into effect; a Johnson County District Court approved a temporary and later a permanent injunction, citing the Iowa Supreme Court's 2018 precedent and the state constitution's "single-subject" rule.
Planned Parenthood North Central States, which operates facilities where most Iowa abortions are performed, confirmed on June 17 that their clinics will comply with the law requiring two appointments on different days. In practice, that means many Iowans seeking abortions will have to wait much longer than 24 hours, especially if they need a surgical procedure rather than a medication abortion.
FUTURE APPROACH TO ABORTION CASES UNCLEAR
In the latest high court ruling, the majority granted the state summary judgment on one part of the case. They found that the process Republican lawmakers used to pass the 2020 law did not violate a constitutional provision saying bills should deal with a single subject.
However, the majority did not determine whether the 24-hour waiting period is constitutional. Rather, they sent the case back to District Court, where litigation will proceed. The ACLU of Iowa, which is representing Planned Parenthood in the case, will continue to fight to have the waiting period struck down.
Whether or not the lower court upholds the waiting period law, the losing side will appeal the decision. It's unclear how the justices will evaluate the legal arguments when the case returns to the Iowa Supreme Court. In a section of the majority opinion joined only by Oxley and Waterman, Mansfield wrote that while the court was rejecting "the proposition that there is a fundamental right to an abortion in Iowa’s Constitution subjecting abortion regulation to strict scrutiny, we do not at this time decide what constitutional standard should replace it."
Those three justices temporarily returned Iowa to a standard set in 2015, when the Iowa Supreme Court unanimously rejected a state rule on the grounds that it imposed an "undue burden" on Iowans seeking an abortion. That perspective matched the U.S. Supreme Court's 1992 precedent known as Casey.
However, the U.S. Supreme Court is poised to overturn both Casey and the 1973 Roe v. Wade ruling, which established a federal constitutional right to have an abortion. Mansfield's opinion anticipates that the U.S. Supreme Court opinions in the forthcoming Dobbs case "will impart a great deal of wisdom we do not have today." The plurality noted that Iowa's high court has the authority to interpret the state constitution, but "often our independent interpretations draw on" U.S. Supreme Court opinions.
"We do not prejudge the position our court will take," the plurality concluded. That means some kind of "undue burden" standard could remain in Iowa, if and when Casey is overturned federally. The court might find, as Mansfield and Waterman held in their dissenting opinion from 2018, that a waiting period does not impose an undue burden on abortion seekers.
But in the 2015 opinion (which both Mansfield and Waterman joined), the Iowa Supreme Court struck down a prohibition on using telemedicine to administer abortions. That suggests a broad ban on terminating pregnancy might be viewed as an undue burden on Iowans' bodily autonomy.
On the other hand, the Iowa Supreme Court's latest decision makes clear that a majority of justices may ultimately subject abortion restrictions to a lower level of scrutiny. In a concurring opinion, Justice McDermott (joined by McDonald) argued that the court should "emphatically reject—not recycle—Casey’s moribund undue burden test and instead direct the district court to apply the rational basis test to the plaintiffs’ constitutional challenge."
That standard requires the state to show only that a law is "rationally related to a legitimate state interest.” Courts rarely strike down laws or government rules viewed through a rational basis standard. Almost any conceivable abortion restriction could be said to promote the state's interest in protecting potential life. Appel wrote in his dissenting opinion, "The rational basis test is in many cases a complete farce."
A "STATE OF CONFUSION" WITH "NO STABILITY"
Governor Kim Reynolds and Republican leaders in the Iowa House and Senate have not indicated whether they will soon attempt to pass another near-total abortion ban. In 2018, GOP lawmakers approved and Reynolds signed a bill that would have prohibited most abortions after a fetal heartbeat could be detected. That law never went into effect; a Polk County District Court struck it down in early 2019. Reynolds declined to appeal, presumably not wanting to give the Iowa Supreme Court an opportunity to affirm its recent finding that the state constitution protects abortion rights. UPDATE: The governor announced on June 28 that she will seek to have the injunction lifted so the 2018 law (which would ban most abortions after six weeks) can be enforced.
By the summer of 2020, when Republicans added the 24-hour waiting period to another bill on the last night of the legislative session, Iowans seeking to ban abortion were optimistic they would get a more favorable result in the Iowa Supreme Court. Four of the five justices who had joined the 2018 majority finding a fundamental right to abortion were gone, and Reynolds had named all of their successors. (Chief Justice Susan Christensen replaced Bruce Zager, who retired in the summer of 2018. McDonald replaced Daryl Hecht, who retired in late 2018, shortly before passing away of cancer. Oxley replaced Chief Justice Mark Cady, the author of the abortion precedent, who died suddenly in late 2019. McDermott replaced David Wiggins, who retired in early 2020.)
In a separate opinion for the current case, Christensen observed, "This rather sudden change in a significant portion of our court’s composition is exactly the sort of situation that challenges so many of the values that stare decisis promotes concerning stability in the law, judicial restraint, the public’s faith in the judiciary, and the legitimacy of judicial review." Although she agreed with the majority that the 2020 law should not be struck down as a single-subject violation, Christensen dissented from most of the majority opinion. She saw no grounds for "such a swift departure from the court’s 2018 decision" and would therefore have found the 24-hour waiting period unconstitutional.
Appel joined most of Christensen's opinion, which walked through several reasons not to overturn the 2018 precedent. "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," she wrote. The "strict scrutiny" standard was not unworkable. The relevant facts have not changed.
In addition, the state legislature has already begun the process of amending the Iowa Constitution to address the 2018 decision, Christensen wrote. "If the majority truly wants to leave this issue to the will of the people, it should let the people have their say through the ongoing constitutional amendment process." Appel added in his dissenting opinion, "A vote of the people approving a constitutional amendment overruling Planned Parenthood II would have much greater legitimacy than a rejection of stare decisis by this court of a 5–2 precedent established only a few years ago."
Christensen warned, "Today’s decision only injects more confusion into the current labyrinth that is our state and federal abortion jurisprudence." The plurality opinion temporarily returned Iowa to the "undue burden" standard.
Yet, there is no stability in that standard because the majority is also remanding this case so that the parties on remand can advocate for their standard of choice through the adversarial process. While I agree that this is the better option than going where the parties do not ask us to go and deciding upon a new standard today, it still leaves abortion providers, the legislature, and lawyers and their clients in a state of confusion about the appropriate response to today’s decision.
[...] Flawed as the majority believes PPH II to be, it at least untethered Iowa from the vulnerable federal standard to provide some sense of stability to Iowa’s abortion jurisprudence.
Adding to the uncertainty, Appel will hit the mandatory retirement age next month. When Reynolds interviews the finalists selected by the State Judicial Nominating Commission, she will surely want to know how the contenders would view future abortion cases.
MAJORITY DOWNPLAYS SIGNIFICANCE OF REVERSING PRECEDENT
Mansfield's majority opinion spends several pages refuting the idea that the court should uphold its 2018 precedent due to stare decisis considerations. First, it's a constitutional case; unlike a ruling based on a statute that the legislature could easily change, overcoming the ruling would require a constitutional amendment. So "courts must be free to correct their own mistakes when no one else can." It's also a recent decision—not one Iowans have relied on for many years—and it overturned other precedents.
Mansfield cited a study showing "our court has overruled precedents at a rate of approximately four per year between 1990 and 2018," including other constitutional precedents. It mentioned a little-known Iowa Supreme Court case from 2018 that "unanimously overruled a case decided only one year prior. In TSB Holdings, we explained at some length why the prior decision was wrong."
Justices changing their minds about their own past decisions is quite different from the current state of affairs. No one who joined the Planned Parenthood II majority now believes that case was wrongly decided. Only the people wearing the robes have changed.
In response to an amicus curiae brief signed by nineteen current or former law professors from the University of Iowa or Drake University, Mansfield wrote,
The professors urge that adhering to a precedent when the membership of a court changes “refutes the cynical view that a supreme court is a political institution guided by the justices’ personal values, rather than the law.” But we know that the professors do not share that cynical view, so why do they ask us to act in fear of it? Shouldn’t we instead follow our solemn oaths to uphold the Iowa laws and constitution? In the end, court decisions should be—and we believe are—judged by the strength of their reasoning, not by the identity of the persons who wrote or joined them.
Reality check: the vast majority of Iowans aren't in a position to judge Iowa Supreme Court decisions by the "strength of their reasoning." They aren't going to read this opinion or any others. No one outside the legal community knows about any of the "approximately four per year" cases that overturned obscure precedents.
This is probably the only Iowa Supreme Court decision most members of the public will hear about all year. Much of what ordinary people learn will reinforce that "cynical view" the majority doesn't fear.
The ruling was the top Iowa news story on June 17. Every report highlighted that justices reversed a previous decision, which had recognized abortion rights. Most of the media coverage mentioned that Reynolds had appointed several justices, and/or quoted the governor cheering the news.
Politicians on both sides of the reproductive rights debate didn't discuss the justices' legal arguments. They stated the obvious: the decision boosts Republicans whose goal is banning abortion.
Reynolds called the majority opinion "a significant victory in our fight to protect the unborn." Bob Vander Plaats of the social conservative group The FAMiLY Leader said, "Today’s ruling moves us closer to the day the people of Iowa can protect pre-born children." The anti-abortion law firm Thomas More Society called the decision "a huge victory for Iowa’s pro-life movement."
Meanwhile, many Democratic officials and candidates denounced the ruling. Iowa Senate Minority leader Zach Wahls called it "disastrous" and "a direct assault on the freedom of Iowa women to make their own health care decisions and of all Iowans to exercise their right to self-determination." Congressional candidate Christina Bohannan, who is also a University of Iowa law professor, called the decision "wrong," adding that "every Iowan should be horrified. With today’s ruling, the court undermined the rule of law in Iowa and stripped women of their fundamental right to make their own reproductive choices."
OUTCOME MAY REINFORCE PARTISAN VIEWS OF COURT'S WORK
Iowa Supreme Court justices are not appointed for life; every eight years, voters have a chance to decide whether they should continue on the bench. For decades, retention elections received little public attention. Then conservatives spent heavily on a successful campaign to oust three Iowa Supreme Court justices in 2010, capitalizing on backlash over the unanimous Varnum v Brien marriage equality ruling. The same faction tried unsuccessfully to remove another justice in 2012. Votes for and against the targeted justices were correlated with votes for the top of the Democratic ticket.
Iowa hasn't seen any organized campaign against a Supreme Court justice since 2012. Nevertheless, the 2020 judicial retention votes signaled that a growing number of Iowans view the high court through a partisan lens.
Four Iowa Supreme Court justices were on the November 2020 ballot; all had been appointed by Republican governors. Even though no Democratic politician or established organization urged voters to oppose the justices, the percentage of "no" votes rose significantly in Democratic-leaning counties.
The first time Mansfield and Waterman were retained in 2012 (one year after Governor Terry Branstad appointed them), they received just under 75 percent "yes" votes statewide. More than 76 percent voted to retain them in Polk County (containing the Des Moines area), and more than 80 percent did so in Johnson County (the Iowa City metro).
When Mansfield and Waterman were on the ballot again in 2020, they received just under 70 percent "yes" votes statewide. That might not sound like a big decline, but their vote shares were around 63 percent in Polk County and 62 percent in Johnson County. Conversely, in the most Republican areas of northwest Iowa, the justices received a higher percentage of "yes" votes in 2020 than eight years earlier.
Remember: no politicians called on Iowans to vote against any Iowa Supreme Court justices in 2020, nor did any group spend money on an anti-retention campaign. The trend toward more "partisan" voting on justices happened organically.
Reynolds' most recent appointees, Oxley and McDermott, will be on the statewide ballot this November. I anticipate that both will be retained, but with more "no" votes than used to be typical in blue counties, and a higher "yes" vote in red counties, as more ordinary Iowans view the Supreme Court as a vehicle for enacting Republican policies.
"WHAT IS 'FUNDAMENTAL' SHOULD NOT BE BASED ON HIGHLY PATRIARCHAL ATTITUDES"
The U.S. Supreme Court is about to discard nearly 50 years of precedent on the grounds that reproductive rights are not a deeply-rooted tradition. Similarly, Mansfield's majority opinion and the concurring opinion by McDermott noted that historically, abortion was never considered a constitutional right in Iowa. On the contrary, the procedure was mostly banned from the 1850s until the Roe v Wade decision.
Appel devoted much of his dissenting opinion to defending the Iowa Supreme Court's 2018 finding. He surveyed many U.S. Supreme Court and state court rulings that found unenumerated rights (those not specifically mentioned in the constitution) to be fundamental. He tracked the decisions that built on one another to protect reproductive rights, and subjected abortion restrictions to strict scrutiny. "It is beyond dispute that the approach of this court in Planned Parenthood II was not an outlier in the developing state constitutional jurisprudence on reproductive autonomy."
He pointed to the long tradition of courts protecting individual liberties: "Within the very first article of the Iowa Constitution, the very first section emphasizes the inalienable rights of citizens that simply cannot be trampled upon by majority action."
In one powerful section, Appel explained why "The Scope of Liberty Interests is not Frozen by Historical Practice."
It makes little sense to determine whether women have a fundamental right to reproductive autonomy from the lens of the white males who fashioned the United States and Iowa Constitutions. At the time of the drafting of the Iowa Constitution, Iowa society—and society across the nation—was patriarchal in nature.420 There were no women members of the Iowa constitutional conventions and no women members of the legislature.421 Women were not trusted with the right to vote, and, even when the franchise was extended to African-Americans after the Civil War,422 the right to vote was not extended to women until decades later.423 [...]
What is “fundamental” should not be based on highly patriarchal attitudes that may have been endemic among the men when the Iowa Constitution was adopted and when women were excluded from participating in the political and economic life of the country. Does anyone really think that the right to autonomy and reproductive freedom should be determined by the views of 18th and 19th century men that solely controlled the political process at the time?
Appel also railed against "rigid historicism," which looks to "historical practice centuries ago" when interpreting concepts like due process. In any event, he cited evidence showing that while Iowa had laws on the books banning abortions, prosecutions under those laws were rare from the mid-19th century to the 1920s.
Though Appel insisted that Cady's 2018 analysis was correct, and that the Iowa Constitution protects abortion as a fundamental right, he devoted several pages to discussing how courts should view abortion restrictions if they reject the strict scrutiny standard. He made the case for an undue burden standard "with teeth," as opposed to "meaningless rational basis tests" that allow for "an ever-increasing, steady march of increased government power into the private lives of individuals."
The bottom line for Appel: "I fear for the future of reproductive autonomy in Iowa." Rightly so.
FUTURE CHALLENGES UNDER "SINGLE-SUBJECT RULE" LIKELY DOOMED
The latest abortion ruling may have one lasting result not connected to reproductive rights: it signals the high court is not inclined to strike down laws based on the state constitution's "single-subject" rule.
As Bleeding Heartland discussed in detail here, Republicans used late-night maneuvers to add the 24-hour waiting period to another bill in the closing hours of the 2020 legislative session. A Johnson County District Court determined last year that the amendment "was passed under highly unusual circumstances" and at great speed despite being not germane to the bill. Lawmakers approved the amendment "with limited to no debate, and without Iowans being given a chance to respond" to the proposal. That was deemed to be a 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."
In an amicus brief, the League of Women Voters of Iowa urged the court to strike down the law on these grounds: "Iowa's single-subject rule commands at least a modicum of public awareness and opportunity to participate in the political process. That did not happen here."
Mansfield's majority opinion covered past cases involving that part of the constitution, which pointed to a "flexible application" of the rule. "This court has consistently rejected single-subject challenges to legislation when there is a common denominator consisting of an overall subject matter." In this case, the original part of the bill and the 24-hour waiting period were both related to "medical procedures."
As for the legislative process, Mansfield was not concerned: "Our constitution does not prohibit the legislature from burning the midnight oil or passing significant legislation with relatively little public debate, as they often do at the end of a legislative session." Moreover, "just as we would bristle at the legislature telling us how we should conduct our business internally, so should we be hesitant to pass judgment on how the legislature conducts theirs."
Although Christensen would have struck down the challenged law under the 2018 precedent, she agreed that its passage did not involve any single-subject violation. Appel argued that "our precedents may have been too forgiving" on this topic. But out of respect for the stare decisis principle, he "reluctantly" concurred that the 24-hour waiting period was not unconstitutional on single-subject grounds.
In a written statement, Iowa Senate Majority Leader Jack Whitver hailed the ruling as "a victory for the unborn, the constitution, and the separation of powers." The decision on the single-subject rule "strengthened the legislature’s independence and constitutionally protected powers to write the laws of this state," Whitver said.
Future litigants should not waste time challenging last-minute laws on these grounds, unless the Iowa House and Senate attach new provisions to bills not related to the topic in any conceivable way.
Appendix: Full text of Iowa Supreme Court decisions in Planned Parenthood of the Heartland v. Kim Reynolds IV.
The majority opinion by Justice Mansfield runs from pages 5 through 67.
The opinion by Justice McDermott, concurring with most of the majority but dissenting from the part restoring the "undue burden" standard, runs from pages 68 through 76.
The opinion by Chief Justice Christensen, concurring with the majority on two points but dissenting from overturning the 2018 precedent, runs from pages 77 through 88.
The dissenting opinion by Justice Appel runs from pages 89 through 177, with an appendix listing abortion-related convictions in Iowa on pages 178 through 182.