The Iowa Supreme Court has rejected Governor Kim Reynolds' request that it quickly green-light any and all abortion restrictions the state might enact.
The action means that it could be years before the high court determines whether the state constitution guarantees any level of bodily autonomy for pregnant Iowans.
GOVERNOR'S REQUEST DENIED WITHOUT EXPLANATION
Reynolds petitioned the high court last week to rehear Planned Parenthood v Reynolds IV, a challenge to Iowa's 2020 law requiring a 24-hour waiting period for abortions. The Iowa Supreme Court issued its opinion in that case on June 17. Although five justices declared that abortion is not a fundamental right under Iowa's constitution, a plurality of three justices did not establish any new legal standard for evaluating limits on when or whether Iowans can terminate a pregnancy.
The plurality temporarily left in place an "undue burden" standard the Iowa Supreme Court had applied in 2015 when striking down a regulation banning the use of telemedicine for abortions. The other two justices who joined most of the majority opinion would have declared that abortion restrictions need only meet a "rational basis" test, the lowest bar for government to clear.
The Iowa Supreme Court normally does not rehear cases, but the Planned Parenthood v Reynolds IV majority seemed to open the door to that prospect by noting that the U.S. Supreme Court's forthcoming opinion in Dobbs "will impart a great deal of wisdom we do not have today."
The state's petition for rehearing argued that the undue burden standard "has never had any basis in Iowa law" and "no longer has any basis in federal law," since the U.S. Supreme Court overturned its 1992 Casey precedent in the Dobbs decision, issued June 24. The state asked the Iowa Supreme Court to confirm (as the U.S. Supreme Court majority did in Dobbs) that a rational basis standard is the correct framework for reviewing abortion restrictions. That standard would virtually guarantee that courts uphold not only the 24-hour waiting period, but any limits including a total ban.
It's not clear why the court declined to rehear the case or whether some of the justices would have been willing to do so. The order signed by Chief Justice Susan Christensen on July 5 states only, "After consideration by this court, the petition for rehearing in the above-captioned case is hereby overruled and denied."
The legal challenge to the 24-hour waiting period now goes back to District Court, where the parties will be able to present arguments about the appropriate standard for legal review. That process will take months, and the lower court's decision will surely be appealed.
On a related note, denying the request to rehear pushes any future Iowa Supreme Court ruling on abortion well past the 2022 general election, when Reynolds-appointed Justices Matthew McDermott and Dana Oxley will both be up for retention. For reasons discussed in more detail here, I expect this year's retention votes to align more closely with partisan preferences than has been true for most of the 60 years Iowans have been able to vote on whether judges remain on the bench.
CONSTITUTIONAL AMENDMENT PROCESS COULD INFLUENCE COURT'S APPROACH
The two justices who dissented from the Iowa Supreme Court's reversal of its own finding on abortion rights argued that the court should let the "ongoing constitutional amendment process" play out instead. In 2021, Republican members of the Iowa House and Senate approved the following proposed amendment:
Sec. 26. Life. To defend the dignity of all human life and protect unborn children from efforts to expand abortion even to the point of birth, we the people of the State of Iowa declare that this Constitution does not recognize, grant, or secure a right to abortion or require the public funding of abortion.
Arguably, that amendment is no longer needed; it was designed to overturn the 2018 Iowa Supreme Court ruling that found the state constitution protects abortion as a fundamental right.
Even though Iowa's high court already wiped away the 2018 precedent, Republicans may continue to pursue adding the language to the state constitution. Doing so would prevent future justices from finding some level of protection for the choice to terminate a pregnancy.
If the GOP retains control of the Iowa House and Senate after the 2022 elections (the party is favored to do so), Republicans would need to approve the constitutional amendment again in both chambers sometime in 2023 or 2024, then schedule a statewide vote.
That would be a high-risk, high-reward strategy. If Iowans adopt the amendment, the Iowa Supreme Court may find that the people have spoken and determined there is no right to abortion in the state constitution. That would clear a path for Republicans to force any and all pregnancies to continue, with no regard for life-altering hardships imposed on Iowans.
Conversely, if voters reject the abortion proposal, the Supreme Court may recognize the popular will and determine the state constitution provides some protection for Iowans who don't want to carry a pregnancy to term. That could lead to a balancing test like the undue burden standard, which weighs bodily autonomy against the state's interest in protecting potential life. That kind of approach might allow a waiting period but probably would preclude a broad abortion ban, to which most GOP politicians aspire.
Past polling suggests most Iowans don't support amending the constitution to remove any trace of abortion rights. To confuse the issue, Republicans reworded the constitutional amendment to imply that it is needed to "protect unborn children from efforts to expand abortion even to the point of birth." That was never plausible before and is especially absurd now that Roe v Wade is gone, giving states free rein to ban abortion entirely. Most voters will understand that a vote for the amendment is tantamount to eliminating any reproductive rights in Iowa.
GOVERNOR'S SECOND LEGAL REQUEST NOT RESOLVED
Reynolds announced one other attempted legal do-over last week: she will seek to reinstate a 2018 law that would have banned most abortions. (Proponents call that law the "heartbeat bill," while opponents describe it more accurately as a six-week ban.) To my knowledge, attorneys representing the state have not yet filed a formal request to lift the injunction on that law, which a Polk County District Court struck down in early 2019.
Whereas the request for an Iowa Supreme Court re-hearing is unusual but definitely allowed under state judicial procedures, it's less clear whether the governor has any legal ground to reverse a court ruling she chose not to appeal three years ago. In theory, litigants have a 30-day window to provide notice of appeal, after which a court's decision is final.
Most attorneys I've asked about this gambit do not see a realistic path for lifting the injunction on the 2018 law. The Polk County District Court's order was the final resolution of the case, since the state did not appeal. Litigants can ask for changes to injunctions that provide some sort of ongoing court supervision, but this doesn't appear to be one of those cases.
Whether or not she prevails in court, Reynolds has already secured one political win: she helped Republican lawmakers avoid an unpopular vote before the November election. Trying to lift the injunction on an old law provides cover for not calling a special legislative session to pass new abortion restrictions.
Reynolds dodged a question last week about her ultimate goal for abortion policy. If re-elected, she will likely advocate for an even more extreme ban than the law she is trying to revive. A special session would have fleshed out how far the GOP trifecta will take its crusade to deny Iowans the ability to make their own health care choices.
UPDATE: Alan Ostergren, who is representing the state in the latest abortion-related litigation after Attorney General Tom Miller declined to do so, told Bleeding Heartland on July 7 that he did not know when a motion would be filed on lifting the injunction.