What we learned from Iowa Supreme Court's non-decision on abortion

The most closely watched Iowa Supreme Court case of 2023 ended in a stalemate on June 16. Nearly a year to the day after the court’s majority severely undermined reproductive rights by reversing a 2018 precedent, the justices split 3-3 on Governor Kim Reynolds’ effort to lift an injunction on a 2018 law that would ban an estimated 98 percent of abortions.

The split decision in what will be known as Planned Parenthood of the Heartland v Reynolds V affirmed last year’s Polk County District Court ruling “by operation of law.” In other words, the 2018 abortion ban will be permanently enjoined. For the foreseeable future, abortion will remain legal up to 20 weeks in Iowa—in contrast to many other Republican-controlled states.

But top Iowa Republicans have vowed to enact new abortion restrictions, which will prompt new litigation. Although the opinions published on June 16 have no force of law, they provide many clues about how the Iowa Supreme Court may approach its next major abortion case.


“This case is extraordinary,” Justice Thomas Waterman observed in the opening line of his opinion, joined by Chief Justice Susan Christensen and Justice Edward Mansfield. He was referring to the “unprecedented effort to judicially revive a statute that was declared unconstitutional in a never-appealed final judgment four years ago.”

It’s also extraordinary that the justices revealed so much about their thought process in a case with no majority holding.

A 3-3 outcome is not particularly rare for the Iowa Supreme Court. It’s happened eighteen times since 2009, according to Justice Waterman’s opinion. Split decisions can occur when there’s a vacancy on the seven-member court, or when one justice recuses from a case. Justice Dana Oxley did not participate in considering this appeal, presumably because her former law firm represents the Emma Goldman Clinic, a party to the lawsuit filed soon after Reynolds signed the six-week abortion ban.

The court does not normally issue opinions in that situation, Justice Waterman observed, because “Anything that any justice says is just their personal advisory opinion.” Indeed, Iowa justices declined to write opinions in any of the eighteen split decisions since 2009, because “there was nothing for ‘the court’ to say.”

However, Justices Christopher McDonald and Matthew McDermott insisted on explaining their reasoning, in separate opinions joined by the other and Justice David May. So the justices who would have affirmed the lower court “must explain our views to provide balance,” Justice Waterman wrote.

Justice McDonald shot back: “My colleagues’ desire to hold this law unconstitutional without any written explanation rebuffs the very constitutional order every judicial officer swears to uphold and defend.”

Here are the opinions released on June 16.

Some news accounts have described the court as “blocking” the law proponents call the “heartbeat” bill. It’s more accurate to say the Iowa Supreme Court took no action. Had the Polk County judge decided the case in favor of the state, that holding would have been affirmed by operation of law, and abortion would be almost entirely banned in Iowa after fetal cardiac activity can be detected.

Because Reynolds opted not to appeal the District Court’s 2019 ruling that struck down the abortion ban, and then tried to revisit the matter more than three years later, this case raised many procedural questions that would not be relevant in a challenge to a newly-enacted abortion ban. (For instance, do courts have an inherent authority to dissolve a permanent injunction, even if a motion is filed long after the deadline for appealing a final judgment under Iowa’s rules of civil procedure?)

This post focuses on legal arguments that are sure to come up in the next big reproductive rights case.


The most important question relates to the standard of review for abortion regulations. In last year’s case known as Planned Parenthood of the Heartland v. Reynolds IV, five justices agreed that the Iowa Supreme Court erred in 2018 when a majority declared that the state constitution protects abortion as a fundamental right, subject to “strict scrutiny” review.

A plurality of three (Mansfield, Waterman, Oxley) declined to establish a new legal standard. Citing a 2015 case that struck down a state policy banning telemedicine abortions, the plurality left a balancing test known as the “undue burden” standard in place for the time being. They invited litigants to present arguments on the proper legal framework as the case went back to District Court. (That never happened, because Planned Parenthood made the tactical decision not to pursue its case challenging a 24-hour waiting period.)

Last year, Justice McDermott argued in a partial concurrence (joined by Justice McDonald) that the Iowa Supreme Court should adopt what is known as “rational basis” review for future abortion cases. That’s the lowest bar for the government to clear. The state need only show that some legitimate interest underlies the law or policy being challenged.

The state argued in the current case that the injunction on the 2018 law should be lifted, because the law clearly survives a rational basis review. When the U.S. Supreme Court overturned both Roe v. Wade (which established abortion as a fundamental right) and Casey (which established the undue burden standard), there was no longer any justification to subject Iowa’s abortion regulations to higher scrutiny. The only available option was rational basis review.

Justice McDonald’s June 16 opinion accepted that logic: “If no fundamental right is involved and no suspect classification is at issue, the court applies rational basis review.” He rejected any basis for continuing to apply the undue burden standard, noting that the 2015 telemedicine abortion case “did not hold that there was a constitutional right to obtain an abortion under the Iowa Constitution.” Rather, the court held that “the state constitutional right was ‘coextensive with the right available under the United States Constitution,'” under Casey.

With Casey gone, no such right exists in Iowa, and therefore no reason not to allow the 2018 abortion ban to be enforced.

As expected, Justice McDermott joined this opinion; he was already on record supporting rational basis review for abortion cases. He wrote separately to criticize several aspects of Justice Waterman’s opinion, concluding with the following passage:

Last year, we were presented with an appeal challenging the constitutionality of a different statute regulating abortion, yet we failed to declare the constitutional standard that applied. This case again presented that same basic task. And for the second time in as many years, we’ve ducked it. It isn’t for us to dictate abortion policy in the state, but simply to interpret and apply the law as best we can in cases that come before us. We fail the parties, the public, and the rule of law in our refusal today to apply the law and decide this case.

Reynolds appointed Justice May after last year’s abortion case, so until last week, it wasn’t clear where he stood on this question. Now that he has signed on to the opinions by his colleagues, we know he too would apply a rational basis standard to future abortion cases.

Under that deferential approach, any law the state might enact with the goal of reducing abortions would be presumed constitutional. The liberty interests of pregnant Iowans would carry no weight.

Would continuing an unintended pregnancy cause irreversible physical harm or severe psychological trauma? Force an Iowan to give up a college scholarship or abandon a life-changing career opportunity? Leave a parent trapped in an abusive relationship, or unable to provide for their other children? Too bad. What’s best for any pregnant individual counts for nothing.

Three justices don’t appear willing to go there.


In last year’s abortion decision, Justice Mansfield wrote for the plurality, “We do not prejudge the position our court will take” regarding the standard of review for abortion regulations. Similarly, Justice Waterman wrote in his June 16 opinion, “In future cases involving new abortion laws, the parties are free to argue for a change in the current undue burden standard, and this court will consider it.”

But the three justices who would have blocked the 2018 law seem inclined to leave the undue burden standard in place for the long haul.

Chief Justice Christensen dissented from last year’s majority decision to overturn the abortion rights precedent. She would have held that a 24-hour waiting period for abortion is unconstitutional. So odds are she’s never going to uphold a near-total abortion ban.

The part of last year’s opinion joined only by Justices Mansfield, Waterman, and Oxley did not entirely discount the interests of pregnant Iowans. As Bleeding Heartland discussed in more detail here, the plurality repeatedly endorsed the idea of a “balancing approach” that acknowledges, “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.”

Justice Waterman wrote last week, “The undue burden test balances the state’s interest in protecting unborn life and maternal health with a woman’s limited liberty interest in deciding whether to terminate an unwanted pregnancy. […] That is the current law in Iowa, not rational basis review.”

The state acknowledged that Iowa’s 2018 law presents an undue burden on those seeking to terminate a pregnancy. Many people are not even aware they are pregnant before six or seven weeks. “The undue burden test remains the governing standard under the Iowa Constitution, and the State concedes, as it must, that the fetal heartbeat bill is unconstitutional under that test,” Justice Waterman wrote. For that reason, he and his colleagues would find the District Court correctly refused to lift the permanent injunction.

Whereas the other side would follow the U.S. Supreme Court’s holding in Dobbs, Justice Waterman relied on the court’s independent authority to interpret the Iowa Constitution. He surveyed other state rulings over the past year and found, “To date, not a single state supreme court that previously recognized protection for abortion under its state’s constitution has overruled its precedent in light of Dobbs to adopt rational basis review.”

Justice Waterman also recalled a 2021 case known as Wright, in which Justice McDonald (writing for the majority) deviated from how the U.S. Supreme Court views search and seizure cases. The Wright majority found that a warrantless search of trash bags in an alley was “an unreasonable search and seizure in violation of article I, section 8 of the Iowa Constitution.”

Justice Waterman’s closing paragraph packed a punch.

It would be ironic and troubling for our court to become the first state supreme court in the nation to hold that trash set out in a garbage can for collection is entitled to more constitutional protection than a woman’s interest in autonomy and dominion over her own body. […] That would be untenable.

Near the end of the April oral argument, Justice Mansfield alluded to bodily autonomy from another angle. He asked Christopher Schandevel of the Alliance Defending Freedom, who was arguing on behalf of the state, whether a mandatory vaccination law would be subject to rational basis review. (No doubt, conservatives would object to such a government intrusion.)

An earlier exchange underscored Justice Mansfield’s resistance to a rational basis standard. I pulled this clip because future cases may hinge on these legal arguments.

Schandevel asserted that under Iowa law, the test “has to be rational basis” unless a fundamental right is implicated, in which case it would be subject to strict scrutiny. The majority opinion in Iowa’s 2022 case held that abortion wasn’t a fundamental right; therefore “the only option available to the court is rational basis analysis.”

Justice Mansfield challenged that claim, noting the intermediate level of scrutiny the U.S. Supreme Court established in Casey. Schandevel said intermediate scrutiny can only be applied “when a fundamental right is at stake,” but that’s not the case here. To which the justice replied:

I don’t want to argue with you about what I wrote, but I will. [laughs]

I think every time I said we’re not recognizing anymore what we said in Planned Parenthood II [the 2018 abortion case] that it’s a fundamental right subject to strict scrutiny. I think I always tied those two phrases together.

It was the strict scrutiny part that I thought we were overruling in Planned Parenthood IV.

If Justices Mansfield and Waterman consider “a woman’s ability to make decisions regarding her own body” to be a fundamental right—even one not subject to strict scrutiny—any new law resembling the 2018 ban will fail the undue burden test.


Depending on how long it takes for the governor and Republican lawmakers to agree on new abortion restrictions, two years could pass before these issues reach the Iowa Supreme Court again. Anyone could change their mind. But the non-binding opinions published on June 16 contained some unusually harsh language.

The authors lectured each other on the separation of powers and judicial activism. Justice Waterman wrote, “In our view, it is legislating from the bench to take a statute that was moribund when it was enacted and has been enjoined for four years and then to put it into effect.”

Justice McDonald accused the others of becoming a “three-person super general assembly” in order to strike down the abortion ban. Justice McDermott wrote that he was “embarrassed to think that we might actually fault the legislature for believing that the judiciary could correctly and more efficiently resolve the issue in this appeal.”

Justice McDonald chided his colleagues for rejecting the U.S. Supreme Court’s reasoning in Dobbs. “But why? Until today my colleagues believed strongly that this court should presumptively follow federal precedents.” He then quoted from Justice Waterman’s dissenting opinion from the the garbage search case, and added, “The only thing my colleagues’ discussion of Wright proves is that I adhere to my own personal precedents. All judges should strive to do the same.”

This level of acrimony could entrench each side in their current positions. In that scenario, Justice Oxley would be the swing vote in an eventual 4-3 opinion on the next big abortion case.

Or would she?


The opening paragraph of the court’s June 16 order reads, “The court, Oxley, J., taking no part, being evenly divided, declares the district court’s ruling affirmed by operation of law.”

According to Justice Waterman’s opinion, the recusal was another reason to deny the state’s request to review the Polk County District Court’s decision.

One of our members is recused and cannot participate in this specific case. The incredibly consequential constitutional issues relating to abortion should understandably be decided by a full court if at all possible.

Our colleagues writing separately do not dispute the factual accuracy of any of the foregoing points. The unprecedented jurisdictional and procedural issues presented in this case fall away if the legislature enacts a new abortion law. Nothing like this case has come up in Iowa’s legal history before or is likely to come up again.

The complex procedural arguments in this case are certainly a one-off. But the lack of a full court may not be.

Iowa Supreme Court justices typically don’t clarify why they are recusing. The obvious explanation here is that before Reynolds appointed her to the bench, Justice Oxley was in private practice with Shuttleworth & Ingersoll in Cedar Rapids. That firm represents the Emma Goldman clinic.

Assuming Iowa lawmakers approve and Reynolds signs a new abortion ban, I can’t think of any reason the Emma Goldman clinic would not join Planned Parenthood in filing suit. That raises the prospect of another recusal and potentially another 3-3 split.

Bleeding Heartland will continue to closely follow the legal landscape for reproductive rights in Iowa.

UPDATE: A reader pointed out that Justice Oxley was still with Shuttleworth & Ingersoll when the lawsuit was filed in 2018. She may not feel obliged to recuse herself from future litigation involving the law firm.

Iowa Supreme Court justices make their own decisions on recusal. Some continue to avoid participating in cases involving their former law partners for years.

Appendix: Full video of Iowa Supreme Court oral arguments on April 11, 2023:

Top image: Official photo of Iowa Supreme Court, taken in 2022. Back row, from left: Justices Matthew McDermott, Christopher McDonald, Dana Oxley, David May. Front row, from left: Justice Thomas Waterman, Chief Justice Susan Christensen, Justice Edward Mansfield.

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  • Offering alternatives by supporters of reproductive rights

    Strategically, advocates of choice should offer positive options for what policy should look like—something that advocates should have at hand. This could be language similar to Roe. On today’s Morning Joe discussion with Joe Gaylord, co-author of Newt Gingrich’s new book, “March to the Majority: The Real Story of the Republican Revolution,” Gaylord was clear that the Contract with America was influential because if offered specifics on what R’s stood for. Those positive options were key in Gingrich’s success. Right now, advocates should remind Iowans of options before Reynolds and R leaders lay out plans for A special session or constitutional amendment. Elected pro-choice leaders could go along with Roe option, or some version with modifications—unnecessary for rigid conformity, like demanded with Newt’s Contract on America. Belin’s analysis demonstrated the continuum and split of views on our Supreme Court. Iowa is pro-choice, like Kansas, with similar splits of opinion on permutations of Roe. While I do not think a constitutional amendment would pass, i do think we should borrow some pages from Gingrich’s book on strategy.