Iowa governor's lawyer pushes for 6-week abortion ban

DES MOINES — An Iowa judge should now allow a law passed in 2018 that bans most abortions to take effect — three years after the measure was ruled unconstitutional — lawyers for Gov. Kim Reynolds argued Friday.

Chris Schandevel, a lawyer for the Republican governor, said Judge Celene Gogerty should set aside a 2019 permanent injunction that prevented Iowa from enforcing a law that would block abortions once cardiac activity can be detected. That is usually around six weeks of pregnancy, before many women know they're pregnant.

Schandevel said the injunction rests entirely on an Iowa Supreme Court 2018 decision that guaranteed the right to an abortion under the Iowa Constitution and cases decided by the U.S. Supreme Court in 1992 and 1973 that established abortion rights nationally.

All three cases were overruled this year by more conservative courts and given that, Reynolds' lawyers argued the judge should reverse the injunction and let the 2018 law take effect.

"It would be inequitable to prevent the people of Iowa to have their voices heard through a validly enacted law, enacted as recently as 2018," he said.

Rita Bettis Austen, a lawyer with the American Civil Liberties Union of Iowa, countered that there is no precedent or legal support in Iowa for a judge to reverse a final judgment from three years ago.

"This case is closed," said Bettis Austen, who is representing Planned Parenthood, the state's leading abortion provider, which challenged the law in court. "Iowa rules of civil procedure clearly govern this type of motion."

She said the rules only allow a court to vacate a final judgment within a year and do not allow such a reversal for a change in law.

During the hearing, Schandevel said courts have an inherent authority over their own injunctions and can reverse them regardless of how long ago they were decided.

The judge said she would issue a ruling soon.

The case should at least in the short term decide whether most abortions remain legal in Iowa. Reynolds, who is running for a second term as governor, opted for the court strategy instead of attempting to pass a law banning abortions in the midst of the midterm elections.

A Des Moines Register/Mediacom Iowa Poll released earlier this month showed that 61 percent of Iowans believe abortion should be legal in most or all cases. The poll had a margin of error of plus or minus 3.5 percentage points.

Iowa Democrats and the liberal advocacy organization Progress Iowa held separate news conferences this week to call attention to the hearing and espouse their support for access to an abortion.

“What we’re hearing today is not about politics. It’s not about the election. It’s about women’s lives,” Jennifer Konfrst, the Democratic leader in the Iowa House, said Friday at the Progress Iowa news conference. “It’s about whether or not women will have the opportunity to survive a miscarriage, to survive an ectopic pregnancy, to thrive in a life where she can have the resources she needs to care for her family.”

Lawyers for both sides argued in court about whether the law remains constitutional under Iowa's current legal status.

The Iowa Supreme Court, in its June decision overturning the state constitutional right to an abortion granted four years ago, did not decide on the level of scrutiny that judges must now use to weigh new abortion bans. Instead, the court left that to be considered.

Since the 2018 decision granting Iowans a constitutional right to an abortion, Iowa courts have held abortion restrictions to the highest level of “strict scrutiny,” which requires laws to be narrowly tailored to fulfill a compelling governmental interest.

With that constitutional right struck down, Bettis Austen argued the “undue burden” level of scrutiny remains in Iowa until the courts change it. She noted that the Iowa Supreme Court has previously said bans on abortion early in pregnancy, including six-week bans, could not survive the undue burden test.

Schandevel said it is appropriate for the judge to reject the undue burden test and instead analyze the law using “rational basis” review. That is the lowest level of court scrutiny that allows most laws to survive legal challenges.

Under this test, lawmakers need only to show they have a legitimate state interest in passing a law and that there is a rational connection between the law and its intended goals.

The abortion law approved by lawmakers and signed by Reynolds requires providers to perform tests to detect a fetal "heartbeat" which usually occurs at about six weeks after a woman's last menstrual period with exceptions for medical emergencies, rape and incest. Embryos don't have hearts at this gestational stage, some providers say, so an ultrasound actually measures electrical impulses, not a true heartbeat.

Any decision Gogerty makes is likely to be appealed.

Twelve states currently ban abortion at conception. Georgia currently enforces a six-week ban similar to what Iowa would have if allowed by the courts. Kentucky, Louisiana, North Dakota and Oklahoma have six-week bans that have been prohibited from enforcement by court orders. In Wisconsin, clinics have stopped providing abortions though there is a dispute over whether a ban is in effect.

Erin Murphy of The Gazette Des Moines Bureau contributed.