Governor Kim Reynolds announced on June 28 that she will seek to lift an injunction on a 2018 law that would have banned almost all abortions in Iowa. After that law was struck down in early 2019, Reynolds opted not to appeal the decision, due to an Iowa Supreme Court precedent that is no longer operative.
The governor will also ask the Iowa Supreme Court to rehear a recently-decided abortion case, taking into account the U.S. Supreme Court's majority opinion that overturned the Roe v Wade and Casey precedents.
2018 LAW WOULD PROHIBIT MOST ABORTIONS
The 2018 law, known as Senate File 359, would ban almost all abortions after a "fetal heartbeat" can be detected. That often occurs around six weeks gestation, before many people realize they are pregnant.
Since an appointment to terminate a pregnancy may not be immediately available, most Iowans seeking an abortion would not be able to complete the process before an abdominal ultrasound could detect cardiac activity (technically not a "heartbeat," since the heart forms later in fetal development).
The law spelled out a handful of exceptions. Abortion would be permitted in a "medical emergency," defined as "a life-endangering condition caused by or arising from the pregnancy" or when continuing the pregnancy presents "serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman." The law specifies that a medical emergency does not include "psychological conditions, emotional conditions, familial conditions, or the woman's age."
Other exceptions covered "medically necessary" abortions, which could occur if the pregnancy resulted from rape (if reported within 45 days to law enforcement or a health care provider), incest (if reported within 140 days to law enforcement or a health care provider), or if abortion care was needed following an incomplete miscarriage, or in the case of a "fetal abnormality" judged by a physician to be "incompatible with life."
REYNOLDS WANTS TWO DO-OVERS IN COURT
Passed in the closing days of the 2018 legislative session, the so-called "heartbeat bill" never went into effect. Soon after Reynolds signed the legislation, the ACLU of Iowa, Planned Parenthood of the Heartland, and the Emma Goldman Clinic filed suit to block its enforcement.
A Polk County District Court determined in January 2019 that the law violated the equal protection and due process provisions of the Iowa Constitution, in keeping with an Iowa Supreme Court decision issued in June 2018. In that case, the high court struck down a 72-hour waiting period and found that the Iowa Constitution protected a fundamental right to have an abortion.
Normally, litigants have a 30-day window in Iowa to appeal court rulings. Reynolds announced in February 2019 that she would not appeal the District Court's ruling striking down the 2018 abortion ban. In a written statement, she explained, "I see no path to successfully appeal the district court’s decision or to get this lawsuit before the U.S. Supreme Court." The governor added, "Rather than be distracted by a losing legal battle, now is the time to renew our focus on changing hearts and minds and to seek other ways to advance the cause of protecting the unborn in Iowa and around the nation."
The legal landscape changed dramatically this month, when five Iowa Supreme Court justices overturned the 2018 decision. They found that the Iowa Constitution does not protect abortion as a fundamental right subject to strict scrutiny.
Consequently, Reynolds said today she "will request that the Iowa courts lift the injunction against enforcement of Iowa’s fetal heartbeat law."
I am not aware of any precedent for a court to reinstate a law years after it was struck down, especially when the state did not exhaust its appeals during the earlier litigation. I'm seeking clarification from the Iowa Judicial Branch and will update this post as needed.
The governor will also ask the Iowa Supreme Court to re-hear the case known as Planned Parenthood v Reynolds IV, which challenged a 24-hour waiting period for all abortions and gave rise to the the decision released on June 17. As discussed in more detail here, a plurality of three Iowa Supreme Court justices did not establish a legal standard for evaluating new abortion restrictions. Rather, they sent the case back to lower court and temporarily returned Iowa to the "undue burden" standard used to strike down a ban on telemedicine abortions in 2015.
The plurality opinion acknowledged that the forthcoming U.S. Supreme Court ruling in Dobbs v. Jackson Women's Health Organization "will impart a great deal of wisdom we do not have today." That decision, released June 24, overturned both the 1973 Roe v Wade decision and the Supreme Court's 1992 Casey ruling, which established the "undue burden" standard.
In today's news release, Reynolds said the Iowa Supreme Court may now re-decide the 24-hour waiting period case with the "wisdom" of the U.S. Supreme Court's Dobbs decision.
Most significantly, the U.S. Supreme Court rejected the “undue burden” standard as an “arbitrary” test that has “caused confusion and disagreement” among courts trying to apply it. In its place, the Court adopted a “rational basis” test under which a law regulating abortion “must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.”
Two Iowa Supreme Court justices already favor the rational basis standard, which would probably allow even a total abortion ban to be upheld.
If the court agrees to re-hear the case, it seven members will include a new Reynolds appointee, because Justice Brent Appel (who dissented from this month's abortion ruling) will hit the mandatory retirement age next month.
ATTORNEY GENERAL'S OFFICE WON'T REPRESENT STATE
The Iowa Attorney General's office has defended the 24-hour waiting period throughout the litigation so far. But Attorney General Tom Miller announced on June 28 that his office is withdrawing from this case "for ethical reasons."
I have made many clear public statements supporting Roe v. Wade and the rationale that underlies it. Those statements would be inconsistent with what the state would argue in court. I support the undue burden standard that the U.S. Supreme Court set forth in Planned Parenthood v. Casey. The 24-hour case has now moved to a point in which I doubt that I can zealously assert the state's position. The question now before the Iowa Supreme Court is whether the rational basis test should apply to abortion regulations. I believe that standard would have a detrimental impact on women’s reproductive rights, health care, and our society.
Miller noted that he had also disqualified himself from representing the state in litigation over the "fetal heartbeat" law in 2018.
In that case, I stated that I could not zealously assert the state's position because of my core belief that the statute, if upheld, would undermine rights and protections for women. In my nearly 40 years in office, I have declined to represent the state in only one other similar situation. I do not take lightly my responsibility to represent the state.
The Thomas More Society provided free legal services to the state in the case involving the 2018 law that Reynolds now wants to resurrect. The governor's office said on June 28 that in the coming litigation over abortion, Reynolds "is retaining Alliance Defending Freedom and Iowa attorney Alan Ostergren, President and Chief Counsel of the Kirkwood Institute, to represent the State at no cost to Iowa taxpayers."
UPDATE: University of Iowa law professor Derek Muller commented that "it's not uncommon to request lifting a permanent injunction due to changes in law." He cited an Iowa Supreme Court decision from 2019, which lifted an injunction blocking the city of Waterloo from selling some land: "A court may vacate an injunction when it 'no longer [has] a factual basis.'”
SECOND UPDATE: Speaking to reporters on June 29, Reynolds ruled out calling a special legislative session and dodged a question about her goal for restricting bodily autonomy. Katarina Sostaric reported for Iowa Public Radio,
“No, no, right now it wouldn’t do any good to call a special session,” she said. “This is the route that we need to take. We’ve got two laws in place, and so we’re going to move forward with that. We’ll wait and see what the ruling is based on that. And then we’ll reassess after that point.”
Reynolds was also asked what her ultimate goal for abortion policy is in Iowa.
“Well, you know, we have the heartbeat bill on the books,” she said. “So let’s lift the injunction, and let’s make that a law that it is. And so we’re going to start with that.”
LATER UPDATE: Most attorneys I've asked about this gambit do not see a legal path for lifting the injunction on the 2018 law. The Polk County District Court's order was the final resolution of the case, and the state did not appeal. There are different kinds of injunctions that involve ongoing supervision by a court; in those cases, litigants can ask for changes years later.
Appendix 1: Full text of June 28 news release from the governor's office
Gov. Reynolds and legislative leaders announce legal action to protect life
DES MOINES -- Today, Gov. Reynolds and legislative leaders announced two legal actions following the U.S. Supreme Court’s decision in Dobbs:
- Gov. Reynolds will urge the Iowa Supreme Court to rehear Planned Parenthood v. Reynolds (known as PPH IV), in light of the U.S. Supreme Court’s decision in Dobbs.
- Gov. Reynolds will request that the Iowa courts lift the injunction against enforcement of Iowa’s fetal heartbeat law.
While this litigation moves forward to protect the unborn, Iowa’s ban on abortions after 20 weeks is still in effect. And, through actions of the legislature and Gov. Reynolds, Iowa continues to provide support for mothers and their children. Through the new MOMS legislation (More Options for Maternal Support SF2354), a statewide program to promote healthy pregnancies and childbirth, the State will provide needed supports, like parenting education, nutritional services, and material items such as diapers and car seats, for women who find themselves in an unplanned pregnancy.
And through the implementation of Family First, the State is also equipping at-risk families with the tools they need to be successful and allowing safe options for a path to adoption through expanded Safe Haven laws. Gov. Reynolds has also supported expanded contraception and family planning services through the State’s Title X program, better ensuring that low-income Iowans have access to maternal care.
“Now is the time for us to stand up and continue the fight to protect the unborn,” said. Gov. Reynolds. “The Supreme Court’s historic decision reaffirms that states have the right to protect the innocent and defenseless unborn—and now it’s time for our state to do just that. As governor, I will do whatever it takes to defend the most important freedom there is: the right to life.”
“Since coming into the majority, Senate Republicans have led on the issue of life,” said Senate Majority Leader Jack Whitver. “In 2018 the Heartbeat Bill created significant momentum across the country for conservative states to initiate legislation to protect the unborn. One of those state laws led to the historic Dobbs decision by the US Supreme Court last week, opening the path for the 2018 law to be implemented in Iowa. I support the decision to put these laws back in front of the Court to protect life in Iowa.”
“For far too long, flawed Court rulings at the state and federal levels have blocked many of our attempts to listen to Iowans and expand pro-life protections,” said Speaker Pat Grassley. “Iowa House Republicans’ goal is to protect the lives of the unborn. That’s why I support the Governor’s decision on these legal actions as the best path forward to protect innocent life.”
Attorney General Tom Miller has also stated that he will be withdrawing from representing the State in these matters. Gov. Reynolds is retaining Alliance Defending Freedom and Iowa attorney Alan Ostergren, President and Chief Counsel of the Kirkwood Institute, to represent the State at no cost to Iowa taxpayers.
With the two landmark abortion rulings in the past two weeks—one from the Iowa Supreme Court and one from the U.S. Supreme Court—the status of abortion law has shifted dramatically in this Country and in Iowa. As a result, and because it is still evolving, we provide the following background information:
The Iowa Constitution makes no mention of abortion, but in 2018—161 years after the ratification of Iowa’s current Constitution—a majority of the Iowa Supreme Court claimed there was a “fundamental right” to abortion under the Iowa Constitution, under which virtually every law that the legislature passes to protect the life of an unborn child would be deemed unconstitutional under the so-called “strict scrutiny” standard.
That decision, which shut the door on the democratic process, was broader in its protection of abortion than the US Supreme Court’s decisions Roe v. Wade and Planned Parenthood v. Casey, and it placed the Iowa Supreme Court’s abortion jurisprudence to the left of almost every state in the nation.
Thankfully, on June 17, the Iowa Supreme Court corrected that grave error, overruling the 2018 decision. A majority of the justices firmly rejected “the proposition that there is a fundamental right to an abortion in Iowa's Constitution subjecting abortion regulation to strict scrutiny,” saying that the 2018 decision was a “one-sided” ruling that “lacks textual and historical support.”
Nevertheless, unlike the U.S. Supreme Court in Dobbs, the Iowa Supreme Court did not definitively decide what standard, if any, should be applied to abortion restrictions under the Iowa Constitution. A plurality of justices invited the parties to litigate that issue further, and in the meantime they declared that the “undue burden” standard from the U.S. Supreme Court’s decision in Planned Parenthood v. Casey would govern Iowa law “for now.”
It is under that undue-burden standard that the Iowa Supreme Court struck down Iowa’s prohibition on telemedicine abortion in 2015. And it is under that standard that other courts have struck down laws that prohibit abortion before viability, like Iowa’s heartbeat law.
Thus, while the Iowa Supreme Court’s decision was a step in the right direction, it left more work to be done in Iowa’s courts to fully protect the life of the unborn, as the U.S. Supreme Court ruled in Dobbs that states have an important interest in doing. Gov. Reynolds fully intends to do that work.
Therefore, Gov. Reynolds is announcing today two legal actions:
1. Gov. Reynolds will urge the Iowa Supreme Court to rehear Planned Parenthood v. Reynolds (known as PPH IV) in light of the U.S. Supreme Court’s decision in Dobbs.
When the Iowa Supreme Court released its decision on June 17 in PPH IV, the U.S. Supreme Court had not issued Dobbs. But Justice Mansfield recognized that Dobbs would be released soon and acknowledged that the U.S. Supreme Court’s decision “could alter the federal constitutional landscape established by Roe and Casey'' and “provide insights that [the Iowa Supreme Court is] currently lacking.”
The U.S. Supreme Court provided those insights in Dobbs and thus the Iowa Supreme Court may now re-decide PPH IV with the wisdom of that ruling. Most significantly, the U.S. Supreme Court rejected the “undue burden” standard as an “arbitrary” test that has “caused confusion and disagreement” among courts trying to apply it. In its place, the Court adopted a “rational basis” test under which a law regulating abortion “must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.”
The Governor will be filing for rehearing by this Friday’s deadline.
2. Gov. Reynolds will request that the Iowa courts lift the injunction against enforcement of Iowa’s fetal heartbeat law.
In 2018, the legislature passed and Gov. Reynolds signed a law outlawing abortion at six weeks, when the baby’s heartbeat can first be detected. A Polk County district court judge enjoined that law, prohibiting Iowa officials from enforcing it, based upon the Iowa Supreme Court’s 2018 ruling in PPH II where the Court erroneously created a fundamental right to abortion. Because the Iowa Supreme Court has now overruled that 2018 ruling and rejected the “strict scrutiny” standard it adopted. Gov. Reynolds will ask the district court to lift the injunction against the heartbeat law.
While this litigation moves forward to protect the unborn, Iowa’s ban on abortions after 20 weeks is still in effect.
Appendix 2: June 28 news release from Iowa Attorney General's office
AG Miller declines to participate in governor's legal actions on abortion
'I doubt that I can zealously assert the state's position'
DES MOINES — Attorney General Tom Miller issued the following statement regarding Planned Parenthood v. Kim Reynolds, et al:
"Our office is withdrawing from the case involving the 24-hour waiting period, or House File 594, for ethical reasons. I have made many clear public statements supporting Roe v. Wade and the rationale that underlies it. Those statements would be inconsistent with what the state would argue in court. I support the undue burden standard that the U.S. Supreme Court set forth in Planned Parenthood v. Casey. The 24-hour case has now moved to a point in which I doubt that I can zealously assert the state's position. The question now before the Iowa Supreme Court is whether the rational basis test should apply to abortion regulations. I believe that standard would have a detrimental impact on women’s reproductive rights, health care, and our society. Therefore, I am disqualifying myself pursuant to Iowa Code section 13.3.'
"This decision is consistent with my disqualification in the fetal heartbeat case in 2018. In that case, I stated that I could not zealously assert the state's position because of my core belief that the statute, if upheld, would undermine rights and protections for women. In my nearly 40 years in office, I have declined to represent the state in only one other similar situation. I do not take lightly my responsibility to represent the state."