Governor discounts pregnant Iowans' well-being. Will Supreme Court agree?

Lawyers representing Governor Kim Reynolds have taken the first step toward reinstating a 2018 law that would ban nearly all abortions in Iowa. A Polk County District Court struck down that law in 2019, and Reynolds did not appeal the decision. A motion filed on August 11 asks the court to lift the permanent injunction, which was founded on Iowa and U.S. Supreme Court rulings that have since been reversed.

In a written statement amplified on her social media, Reynolds promised, "As long as I’m Governor, I will stand up for the sanctity of life and fight to protect the precious and innocent unborn lives.”

Left unsaid by the governor, but made clear by the legal brief her team filed: pregnant Iowans' interests have almost no value in the eyes of the state.

Will four Iowa Supreme Court justices balance competing concerns the same way?

LAW WOULD MAKE ABORTION INACCESSIBLE FOR MOST IOWANS

The 2018 law, known as Senate File 359, would ban almost all abortions after a "fetal heartbeat" can be detected. Reynolds' August 11 statement asserted, “Life and death are determined by a person’s heartbeat, and I believe that includes our unborn children."

That's not medically accurate. Many people are pronounced brain dead, which is a legal definition of death, while their hearts are still beating. And Erin Murphy noted in his report for the Cedar Rapids Gazette,

[M]edical experts say the heart is not developed at six weeks, and ultrasound machines at that point in a pregnancy are not actually detecting a heartbeat. According to the American College of Obstetricians and Gynecologists, what is actually heard at six weeks is the ultrasound machine translating electronic impulses that signify cardiac activity.

“It is clinically inaccurate to use the word ‘heartbeat’ to describe the sound that can be heard on ultrasound in very early pregnancy. In fact, there are no chambers of the heart developed at the early stage in pregnancy that this word is used to describe, so there is no recognizable ‘heartbeat,’” the American College of Obstetricians and Gynecologists says.

In any event, the impulses described in the 2018 law as a "fetal heartbeat" can often be detected around six weeks gestation, before many people realize they are pregnant.

Iowa law imposes an ultrasound requirement and a 24-hour waiting period on anyone seeking an abortion. In addition, patients typically wait days or weeks to be seen by a provider. So for most Iowans, it will be impossible to terminate a pregnancy. By the time they could schedule an abortion, ultrasound will reveal tones making that procedure illegal.

The law contains some exceptions (discussed below), but they would apply to few abortion seekers.

STATE'S BRIEF IS ONE-SIDED

Unplanned pregnancies permanently alter many lives. Dropping out of school can derail lifelong career prospects. A household may descend into poverty because a parent can't support another child, or quits a job for lack of affordable child care. Being pregnant can also dramatically change one's physical or psychological health, sometimes irreversibly.

Reynolds doesn't acknowledge that her drive to "protect the precious and innocent unborn lives” would inflict real hardship on thousands of Iowans who don't want to be pregnant. Neither does the motion her attorneys filed in Polk County District Court on August 11.

Here's the filing released by the governor's office. Alan Ostergren of the Kirkwood Institute and attorneys from the Alliance Defending Freedom submitted the motion on behalf of the state, since Attorney General Tom Miller declined to defend the 2018 law.

The core legal argument is simple: the 2019 ruling that struck down the six-week ban relied on the Iowa Supreme Court's abortion rights precedent from the previous year, as well as the U.S. Supreme Court's Roe and Casey decisions. All of those were reversed in June. "As a result, the permanent injunction this Court [the Polk County District Court] previously issued is now 'founded on superseded law.'”

When the Iowa Supreme Court ruled that the state constitution does not protect a fundamental right to abortion in the case known as Planned Parenthood of the Heartland IV, five justices declared that abortion restrictions are not subject to a "strict scrutiny" review. A plurality of three justices did not establish a new legal standard. Rather, they temporarily returned Iowa to the "undue burden" standard that originated with the Casey precedent: the impact of restrictions on those seeking abortions must be weighed against the state's interest in protecting potential life.

One week later, the U.S. Supreme Court overturned Roe and Casey. The majority in that case (known as Dobbs) said the undue burden test was “ambiguous,” “arbitrary,” and “unworkable.” They declared that federal courts should use a "rational basis" standard for reviewing abortion restrictions, which is the easiest bar for the state to clear.

Consequently, the state's brief now argues that any abortion regulations at any stage of pregnancy must be upheld if there is any "rational basis on which the legislature could have thought that it would serve legitimate state interests." In this case, most of the brief focuses on protecting potential life.

One paragraph pays lip service to others who supposedly would benefit from the law:

What’s more, by prohibiting elective abortion after detection of a fetal heartbeat, Iowa’s law also rationally furthers state interests in prohibiting a barbaric practice, protecting women’s health and safety, and preserving the medical profession’s integrity. Dobbs, 142 S. Ct. at 2284. Measured against any of these interests, the law is constitutional.

Abortion bans already in effect elsewhere are not serving those interests.

EXCEPTIONS LEAVE OUT MANY WHO WOULD BE HARMED BY PREGNANCY

The law states, "A physician shall not perform an abortion upon a pregnant woman when it has been determined that the unborn child has a detectable fetal heartbeat, unless, in the physician’s reasonable medical judgment, a medical emergency exists, or when the abortion is medically necessary." The law defines those terms as follows:

"Medical emergency"

There's a lot to unpack in this paragraph.

“Medical emergency” means a situation in which an abortion is performed to preserve the life of the pregnant woman whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy, but not including psychological conditions, emotional conditions, familial conditions, or the woman’s age; or when continuation of the pregnancy will create a serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman.

A "life-endangering physical condition caused by or arising from the pregnancy" could mean many things. In some states with abortion bans in place, physicians have delayed treatment for severe infections related to a miscarriage or water breaking too early, not wanting to act while a fetal heartbeat could be detected. That's not "protecting women's health and safety," and it certainly isn't "preserving the medical profession's integrity." OB/GYNs are already turning down job offers in states that have banned abortion, because they don't want to choose between providing appropriate care and their license to practice.

High blood pressure and diabetes are associated with increased risks of life-threatening complications. But would a physician be willing to vouch for an emergency first-trimester abortion on that basis? What if the county attorney later demanded proof the woman's life was in danger?

The same goes for "serious risk of substantial and irreversible impairment of a major bodily function." By the time many of those complications emerge, abortion would be inaccessible in Iowa under a 2017 law that banned almost all abortions after 20 weeks.

Annie Lowrey endured horrific complications during her two pregnancies, starting during the first trimester, but a doctor might hesitate to assert the damage to her body would be irreversible. Severe nausea (a complication that can go on for months) and sciatica are other debilitating conditions that fall short of life-threatening.

Senate File 359 specifically says "psychological conditions, emotional conditions, familial conditions, or the woman's age" cannot be cited as a medical emergency justifying an abortion. So if you are prone to depression or anxiety (conditions often worsened by pregnancy), or medications that help manage your mental health are contra-indicated for pregnancy, the state of Iowa says tough luck: you can suffer for the next seven or eight months.

By excluding "familial conditions," the state shuts the door on domestic violence victims seeking to terminate a pregnancy, even though "Homicide was the leading cause of death for pregnant and postpartum women in the U.S. in 2018 and 2019 – exceeding all top causes of maternal death 'by more than twofold.'"

Pregnancy and childbirth often cause lasting physical and psychological trauma for pre-teens and young teenagers. Too bad: the state says "the woman's age" can't be a factor justifying abortion as a medical emergency.

"Medically necessary"

The law specifies four situations that would allow a "medically necessary" abortion.

  • A pregnancy caused by rape, if the rape has been reported within 45 days "to a law enforcement agency or to a public or private health agency which may include a family physician."
  • A pregnancy caused by incest, if the incest was reported within 140 days to law enforcement or a health agency.
  • "Any spontaneous abortion, commonly known as a miscarriage, if not all of the products of conception are expelled."
  • "The attending physician certifies that the fetus has a fetal abnormality that in the physician’s reasonable medical judgment is incompatible with life."

The majority of rape victims do not report their assaults. The same is true for many incest victims, who often fear retaliation from their abuser if they cause trouble.

In states with similar laws on the books, physicians have hesitated to perform procedures used for incomplete miscarriages as long as fetal cardiac activity can be detected.

Fetal abnormalities incompatible with life are often detected through an ultrasound performed around 20 weeks of pregnancy. By then it would be too late for Iowans to terminate, under a 2017 law banning abortions after 20 weeks (which contained no exception for fetal abnormalities).

Self-administered abortion

It's worth noting that Senate File 359 does not prohibit self-administered abortion. (The Iowa Abortion Access Fund lists some resources for people who want to go that route. Iowans considering that option should limit whom they tell and take steps to avoid leaving a digital trail.)

On the other hand, many Iowans would be unable to obtain medication that induces abortion without a physician's assistance. And medication abortions are not suitable for every situation. A safe surgical abortion requires a medical professional.

LAW COULD OBSTRUCT HEALTH CARE FOR NON-PREGNANT IOWANS

As mentioned above, Senate File 359 stipulates, "A physician shall not perform an abortion upon a pregnant woman when it has been determined that the unborn child has a detectable fetal heartbeat [...]."

In states where similar laws have taken effect, some women of childbearing age have had trouble obtaining prescription drugs used for various conditions.

Katie Shepherd and Frances Stead Sellers reported for the Washington Post this week,

Medicines that treat conditions from cancer to autoimmune diseases to ulcers can also end a pregnancy or cause birth defects. As a result, doctors and pharmacists in more than a dozen states with strict abortion restrictions must suddenly navigate whether and when to order such drugs because they could be held criminally liable and lose their licenses for prescribing some of them to pregnant women.

Even if they can show their patients suffer from conditions such as rheumatoid arthritis, some doctors worry they could be prosecuted for prescribing such drugs to a patient with an unintended pregnancy. 

Dr. Erica Jalal of ABC News spoke to one such patient, a "48-year-old woman without a uterus" in Tennessee, which bans abortions after six weeks. She had trouble getting a prescription filled for methotrexate, and suffered a flare of inflammatory arthritis as a result.

Crow said she's spoken to many other people on Twitter with chronic diseases requiring methotrexate treatment with similar experiences to hers. She said that "many of them reached out to their doctor preemptively. Many doctors said that they had a blanket hold on all methotrexate until it gets worked out."

Olivia Goldhill reported for StatNews in early July,

Harry Nelson, founder and managing partner of the Nelson Hardiman health care and life sciences law firm in Los Angeles, which advises physicians all over the country, said he’s had multiple calls from providers in Texas who are now scared of having anything to do with methotrexate. Even if it’s not intended to be used for an abortion, physicians are afraid that if the drug inadvertently causes a loss of pregnancy for a patient taking it as a rheumatology treatment, they could face repercussions. 

HOW MIGHT THE IOWA SUPREME COURT APPROACH THIS CASE?

I am not aware of any Iowa precedent for a court resurrecting a law that was ruled unconstitutional years earlier. The state's brief cites a 1995 Iowa Supreme Court decision, which paraphrased a 1974 case this way: "The court which rendered the injunction may modify or vacate the injunction if, over time, there has been a substantial change in the facts or law." In this context, it argues, the Iowa Supreme Court and U.S. Supreme Court rulings from June changed the law on abortion regulations.

As Bleeding Heartland author "Bill from White Plains" discussed in more detail here, those earlier cases didn't involve injunctions that stopped a law from going into effect. Rather, the injunctions had prevented a concrete plant from operating, and forbidden a Meskwaki settlement resident from interfering with the Tribal Council.

Planned Parenthood and the ACLU of Iowa, which filed suit to block the 2018 law, haven't yet filed a response to the state's brief. They will surely present legal arguments against lifting the injunction in the absence of new evidence or factual findings about the abortion ban's likely impact on Iowans.

I also expect to see procedural arguments against undoing the District Court's declaratory judgment, which Reynolds chose not to appeal within 30 days of its publication in 2019. (Attorneys with insight on such matters are encouraged to contact me confidentially.)

So I wouldn't assume the Polk County District Court and/or Iowa Supreme Court will accept the premise of the state's request to reopen a closed case. They may say the Iowa legislature needs to approve a new abortion law, giving rise to new litigation.

But for now, let's suppose the Iowa Supreme Court buys into the idea that it's not too late for the state to resurrect a law struck down more than three years ago.

Whether they bring the six-week abortion ban back to life will depend on the standard of review they apply. We know it won't be "strict scrutiny" (the highest bar for the government to clear), because five Iowa Supreme Court justices declared in June that abortion is not a fundamental right, so abortion regulations don't need to survive a strict scrutiny analysis.

The whole ballgame will rest on whether the justices use some kind of balancing test, akin to the "undue burden" standard, or adopt a "rational basis" review, like the U.S. Supreme Court did in Dobbs.

Under rational basis analysis, the state has a legitimate interest in protecting unborn life. End of story. The consequences for Iowans forced to continue pregnancies are irrelevant, even if denying them an abortion ruins their happiness, physical or mental health, livelihood, or educational aspirations.

On the flip side, Senate File 359 could never survive a balancing test. If the court attaches any value to bodily autonomy, it would have to recognize that cutting off abortion access so early imposes an undue burden on Iowans who want to terminate a pregnancy.

"Bill from White Plains" reviewed the state's arguments and the legal standards here.

I'm not sure rational basis will carry the day.

GETTING TO FOUR VOTES

The state needs to convince at least four Iowa Supreme Court justices, and they already have two votes in the bag.

Justice Matthew McDermott wrote a special concurrence in Planned Parenthood of the Heartland IV, which begins on page 68 of this document. Key points: abortion rights are not deeply rooted in our state's history and tradition. Since there is no fundamental right to abortion, restrictions on the procedure can't be subjected to heightened scrutiny. Therefore the court should "emphatically reject" the undue burden standard and view all abortion restrictions through a rational basis lens. Justice Christopher McDonald joined this opinion.

A few weeks ago, Reynolds appointed Iowa Court of Appeals Judge David May to replace retiring Justice Brent Appel (who dissented from the PPH IV decision). May was careful not to discuss any hot-button issues during his public interview with the State Judicial Nominating Commission. But at the news conference announcing her choice, Reynolds said, “At every point in this decision, Judge May at the Iowa Court of Appeals stood out for his experience, his approach to interpretation, and his commitment to judicial restraint."

Translation: the governor is confident May won't strike down laws the Republican trifecta enacted. She may have received assurances from the judge or from people who know him well.

May told reporters, "judges don’t exercise the powers of the executive and the legislature. We have a different job. Our job is to decide legal disputes. [...] And we decide those cases based on the law as it is written and consistent with our oath to support the Constitution of the United States (and) support the constitution of the State of Iowa.” Sounds like a judge who will mostly defer to the governor and GOP-controlled legislature.

That's probably three votes for a rational basis analysis, which would consider only the state's interest in protecting unborn life, and not the liberty interests of Iowans forced to serve as incubators once an embryo has been implanted in their uterus for a few weeks.

Chief Justice Susan Christensen dissented from most of the June ruling. She would have left the court's 2018 precedent intact and struck down the 24-hour abortion waiting period at issue in PPH IV. Christensen's opinion (beginning on page 77) warned, "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 also called for letting the constitutional amendment process play out to see whether Iowans think the state constitution protects abortion.

It's hard to imagine Christensen going along with a decision to revive a near-total abortion ban.

That leaves the three justices who decided in June not to establish a new standard of review for abortion cases: Justice Edward Mansfield (the author of the majority opinion), joined by Justices Dana Oxley and Thomas Waterman. The state probably needs only one of them.

The majority opinion lays out many reasons to reject the concept of a fundamental right to abortion, and to reverse the 2018 precedent known as Planned Parenthood of the Heartland II or PPH II.

The state's brief implies that the court has no choice but to apply a rational basis standard now. Since abortion isn't a fundamental right under Iowa's constitution, "it can no longer be true that the viability line has any 'inherent' value under Iowa law." Since the U.S. Supreme Court erased any justification for considering viability or undue burdens in its Dobbs decision, "laws regulating abortion are subject to rational-basis review, and Iowa’s fetal heartbeat law easily passes that test."

But the PPH IV plurality—that is, the part of the majority opinion joined only by Mansfield, Oxley, and Waterman—doesn't entirely discount the right of pregnant Iowans to control their own destinies. Twice (on pages 58 and 60) the opinion dings the 2018 majority ruling as "one-sided." And several passages endorse the idea of balancing competing concerns.

Constitutions—and courts—should not be picking sides in divisive social and political debates unless some universal principle of justice stands on only one side of that debate. Abortion isn’t one of those issues. “Each side in the debate is motivated by a serious, legitimate concern: on the one hand, a woman’s ability to make decisions regarding her own body; on the other, human life.” PPH II, 915 N.W.2d at 246 (Mansfield, J., dissenting). [...]

Therefore, unsurprisingly, under the fundamental rights/strict scrutiny approach taken in PPH II, there is no effort to balance: Having an abortion without delay is deemed more important than preserving unborn life. [...]

Our country remains as divided as ever on abortion. [...]

In summary, PPH II lacks textual and historical support. It is doctrinally inconsistent with prior Iowa jurisprudence concerning family rights that followed a balancing approach. [...]

Clearly Mansfield, Oxley, and Waterman don't believe the Iowa constitution protects the right to have an abortion "without delay." But the case they resolved in June concerned a law imposing a 24-hour waiting period. In contrast, the case the governor will bring to them in the coming year concerns a law that would make abortions nearly impossible to obtain.

The state's brief points to a passage in the PPH IV majority opinion that anticipates a U.S. Supreme Court ruling in Dobbs "will impart a great deal of wisdom we do not have today." But that paragraph doesn't say the Iowa Supreme Court will only consider the Dobbs majority's reasoning. On the contrary:

Although we take pride in our independent interpretation of the Iowa Constitution, often our independent interpretations draw on and contain exhaustive discussions of both majority and dissenting opinions of the United States Supreme Court.

Mansfield's opinion immediately goes on to say (page 66),

We do not prejudge the position our court will take. We agree with the PPH II majority that “[a]utonomy and dominion over one’s body go to the very heart of what it means to be free.” 915 N.W.2d at 237 (majority opinion). We also agree that “being a parent is a life-altering obligation that falls unevenly on women in our society.” Id. at 249 (Mansfield, J., dissenting). Yet, we must disapprove of PPH II’s legal formulation that insufficiently recognizes that future human lives are at stake—and we must disagree with the views of today’s dissent that “[t]he state does not have a legitimate interest in protecting potential life before viability."

Will a justice who endorsed those words turn around and decide that protecting an embryo at seven weeks gestation outweighs any concern for the wishes of Iowans carrying unplanned pregnancies? Even though the latest Iowa Poll (taken in the aftermath of the Dobbs decision) indicated that 60 percent of adults believe abortion should be mostly or always legal? Even if a "heartbeat" standard has been demonstrated to compromise best medical practices for treating some pregnancy conditions? Even if other states' six-week abortion bans have jeopardized women's access to essential medications?

Voters in Kansas (a state more red-leaning than Iowa) overwhelmingly rejected a constitutional amendment that would have allowed the GOP-controlled legislature to ban abortion. Maybe, instead of giving the governor the result she demands now, the Iowa Supreme Court will hit the pause button and allow the 2018 law to remain enjoined.

As Christensen wrote in her PPH IV opinion (page 85): "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."

UPDATE: I forgot to mention that in 2015, Mansfield and Waterman were part of the Iowa Supreme Court's unanimous opinion striking down a state regulation that banned the use of telemedicine for abortion services. The justices deemed the rule to present an "undue burden" on Iowans seeking to terminate pregnancies, even though it did not restrict surgical abortions at all.

LATER UPDATE: District Court Judge Celene Gogerty set the following schedule:

  • Planned Parenthood has until September 12 to file a brief resisting the motion to lift the injunction
  • The attorneys representing the state have until September 26 to file their reply brief
  • A hearing is scheduled for October 28

The judge may not issue a decision until after the November election. Either way, it will be appealed.

Top photo by Antonio Guillem available via Shutterstock.

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