A Polk County District Court has denied the state’s request to lift a permanent injunction on a 2018 law that would ban most abortions in Iowa.

Judge Celene Gogerty had asked skeptical questions of both sides during a hearing in late October. But her December 12 ruling agreed with key legal arguments the ACLU of Iowa made on behalf of Planned Parenthood of the Heartland. The judge comprehensively rejected points private attorneys raised on behalf of Governor Kim Reynolds.

Reynolds immediately pledged to appeal the decision to the Iowa Supreme Court, which will likely hear the case next year. Although some justices have signaled they might uphold sweeping abortion bans, Gogerty’s decision gives the justices several ways to determine that this case is not the vehicle for reaching that outcome.

NO AUTHORITY TO DO WHAT STATE IS SEEKING

The 2018 law would prohibit almost all abortions after fetal cardiac activity could be detected, which usually occurs around the sixth week of pregnancy. A Polk County District Court struck it down in early 2019, citing the Iowa Supreme Court’s recent abortion rights precedent as well as the U.S. Supreme Court’s holdings in Roe v. Wade and Casey. Reynolds did not appeal that decision at the time.

The governor moved to reinstate the law this summer, after the Iowa Supreme Court majority reversed its 2018 ruling on abortion and the U.S. Supreme Court issued the Dobbs decision overturning Roe and Casey.

When Iowa Attorney General Tom Miller declined to defend the 2018 law, the Alliance Defending Freedom and Kirkwood Institute took on the case. They argued that the Polk County District Court should dissolve the permanent injunction on Iowa’s so-called “heartbeat” law because the precedents used to block the law were no longer operative.

Here’s the full text of Judge Gogerty’s ruling:

First, the judge explained, under the Iowa Rules of Civil Procedure the court has “no applicable authority to support a motion to modify or vacate a permanent injunction more than one year after judgment based on a change in law.” Federal rules give more leeway to courts. But Planned Parenthood filed the 2018 lawsuit in state court, citing provisions of the state constitution. So Iowa judicial procedures apply.

Attorneys for the state had argued that the District Court has “inherent authority to modify or vacating an injunction based on a substantial change in the law.” But Judge Gogerty was not convinced by any of the cases the state presented as supporting that authority. One case relied on a change in facts, not the law. Another was not related to lifting a permanent injunction. Two others predate the adoption of Iowa’s civil procedure rules in 1943.

In a more recent case (Spiker), the Iowa Supreme Court held “courts have inherent authority to modify decrees concerning custody and visitation of children based on a substantial change in circumstances.” But that family law decision was not comparable to the current legal dispute. The Spiker court found that failing to modify a visitation order would result in the state violating a mother’s constitutional rights. In contrast,

At the time of the permanent injunction in this case, the order to permanently enjoin was consistent with the fair and equitable implementation of a constitutional scheme. In January 2019, the federal constitutional scheme was – and had been for nearly half a century – that laws unduly restricting abortion were unconstitutional.

Planned Parenthood’s brief had cited a 1924 case in which the Iowa Supreme Court held that when a statute was “declared to be unconstitutional, it ceased to be, as effectually as if it had never been passed.” Judge Gogerty agreed that the state had provided no case law supporting the idea that a permanent injunction on an unconstitutional statute could later be vacated based on a change in the law.

Even if a road map existed for the District Court to revisit this closed case, the judge found the state’s arguments failed for another reason.

“THERE HAS NOT BEEN A SUBSTANTIAL CHANGE IN THE LAW”

The state had argued that after the Iowa and U.S. Supreme Courts held there is no fundamental right to abortion, the law had changed enough to justify letting the 2018 abortion ban go into effect.

But Judge Gogerty noted that the Iowa Supreme Court’s June 2022 ruling known as Planned Parenthood of the Heartland IV “explicitly did not find that the standard of review for abortion regulations would be rational basis like the Supreme Court in Dobbs.” Rather, a plurality of three justices held that “for now,” the Casey undue burden test, which the Iowa Supreme Court had applied in a 2015 case, “remains the governing standard.”

The 2018 law Reynolds is trying to revive would ban most abortions. That “would be an undue burden and, therefore, the statute would still be unconstitutional and void.”

The plurality opinion in PPH IV did acknowledge that the parties may further litigate the appropriate legal standard for abortion cases. But the District Court would not be the right venue to resolve that dispute, the December 12 decision noted. Only the Iowa Supreme Court can decide what standard to apply in state constitutional matters. They are not bound by how the U.S. Supreme Court handled the Dobbs case.

In a written statement reacting to the District Court’s decision, Reynolds said, “As the Iowa and US Supreme Courts have made clear, there is no fundamental right to an abortion. The decision of the people’s representatives to protect life should be honored, and I believe the court will ultimately do so.”

Perhaps the Iowa Supreme Court will decide some day to use the rational basis standard to review state abortion restrictions. Two of the seven justices are already on record favoring that approach.

But even if there are four votes on the high court allowing near-total abortion bans, there is no guarantee the justices would impose that standard by reopening a long-closed case over a law struck down years ago. The court may determine that the proper path is for the legislature and governor to enact a new abortion law, which would be challenged.

It will likely be quite a few months before the Iowa Supreme Court rules on the governor’s appeal. In the meantime, abortion remains legal in Iowa up to 20 weeks.

Final note for those who may wonder about this judge’s political background: Reynolds appointed Gogerty to the District Court in 2018. She previously worked as an assistant Polk County attorney for eighteen years. Before becoming a judge, her only recorded campaign contributions to Iowa candidates went to Polk County Attorney John Sarcone or Sheriff Bill McCarthy.

UPDATE: During a December 13 news conference, the ACLU of Iowa’s legal director Rita Bettis Austen said that the typical time frame for the Iowa Supreme Court to consider this kind of appeal would put oral arguments during the court’s next term, which begins in the late summer. However, it is possible the court could expedite the case by moving up deadlines for parties to submit briefs, to allow arguments to happen before this term’s deadline in the spring.