In Iowa, a legislative session that should never have happened

I don’t currently favor any legislation that prohibits an abortion as early as six weeks into a pregnancy. I posit that enough can still go wrong in the first trimester of a pregnancy that prohibiting the termination of a pregnancy before 12 weeks postfertilization could induce some unfortunate consequences. So I favor neither the “fetal heartbeat” bill passed by the state legislature last week, nor the one passed previously in 2018.

The special session called by Gov. Kim Reynolds to pass an abortion bill has dominated political conversation as of late. The session was called only weeks after the Iowa Supreme Court declined in a split decision to lift a lower court’s injunction on the 2018 fetal heartbeat bill, an injunction Reynolds had sought last August to dissolve. Last Tuesday, during that special session, Republicans passed new legislation prohibiting abortion at any time after the detection of cardiac activity in the womb, with limited exceptions.

I don’t believe that session should ever have been called. Instead, the Iowa Supreme Court should have dissolved the injunction on the 2018 fetal heartbeat law and let it go into effect.

Wait a minute, you might think. The columnist doesn’t like the 2018 law. The law is permanently barred from being enforced. But the columnist thinks it should be in effect? Yes.

It’s a baffling notion, for sure. But my opinion of certain legislation doesn’t supersede my belief in the rule of law. And if Iowans are going to turn to the rule of law to settle the long-standing fight over the practice of abortion and the sanctity of forthcoming life, then the law must be properly made, properly enforced — and properly reviewed. I was uncomfortable with several of the reasons cited by the Iowa Supreme Court last month to continue enjoining the 2018 law.

It’s taken several years to reach this point, throughout which our judicial standards of review have changed several times due to rulings in state and federal court. In 2018, the GOP-controlled legislature passed the law prohibiting abortions after the detection of a “fetal heartbeat” with limited exceptions. That same summer, the Iowa Supreme Court issued a decision on a challenge from Planned Parenthood to a different law from 2017, which in part instituted a mandatory 72-hour waiting period. The 72-hour waiting period was struck down, and the court held that the right to terminate a pregnancy was a “fundamental right” under the due process clause of the Iowa Constitution. Any government action to limit a fundamental right is subject to a judicial review process called “strict scrutiny.”

When Planned Parenthood sued to block the 2018 heartbeat bill, a District Court held again in 2019 that abortion was a fundamental right, permanently enjoining the heartbeat bill. Seeing no path to a legal victory, Reynolds and the state did not appeal the lower court’s ruling. Legislative Republicans would later take the first of a series of steps to pass an amendment to the Iowa Constitution stating that it does not guarantee the right to an abortion.

In 2020, the legislature passed a 24-hour waiting period for an abortion. Planned Parenthood sued again, challenging the constitutionality. In a June 2022 decision the Iowa Supreme Court this time reversed its previous ruling that had declared a fundamental right to an abortion. While Justice Edward Mansfield noted that the court was not deciding at that time what standard of review would replace the strict scrutiny standard, abortion was officially no longer deemed a fundamental right in Iowa.

One week later, the U.S. Supreme Court ruled in Dobbs v. Jackson that the U.S. Constitution does not guarantee a federal right to an abortion, that states have the right to regulate it, and that states need only a show a legitimate government interest in doing so, a standard of review called the “rational basis test.” With a significant shift in the legal landscape at both the state and federal level, Gov. Reynolds asked a district court to dissolve the injunction against the 2018 fetal heartbeat bill, believing that updated legal standards would allow it to prevail.

Standards of review aren’t the source of my concern over last month’s Iowa Supreme Court ruling. Neither is procedure. All justices agreed that the only way to review the injunction would be “by a writ of certiorari,” which is completely discretionary. Each side of the debate stated their assertions about whether they would grant a writ of certiorari.

It was reasons cited by Justice Thomas Waterman, who wrote for the “deny the writ, keep the injunction” side, that raised my eyebrow. One reason to deny a writ, Waterman wrote, was that legislative Republicans had not voted during the 2023 legislative session to proceed with the second vote to approve the constitutional amendment declaring no fundamental right to an abortion. But while an amendment would be a stronger constitutional standard than a court’s interpretation, the Iowa Supreme Court’s own ruling last summer declared the same thing that the constitutional amendment would, minimizing statehouse Republican’s urgency to pass the amendment — which they could still do in the 2024 legislative session without delaying the overall process.

Waterman also pointed out that fewer than a majority of state legislators had signed onto the amicus brief, seemingly to justify not granting the state’s request for discretionary review of the injunction. I’m no lawyer, but I’m not sure a judicial (or legislative) standard exists to equate signing a court brief with continued legislative support for a law passed five years ago.

Waterman also seems to fault the GOP-controlled Legislature for not passing additional legislation to “reenact” the fetal heartbeat section of Iowa Code that was enjoined by the lower court. But “contrary to my colleagues’ assertion, the Legislature does not need to ‘reenact section 146C’ to demonstrate that it is an actual law,” wrote Justice Christopher McDonald, for the “grant the writ, dissolve the injunction” side.

In a separate opinion, Justice Matthew McDermott agreed with McDonald. “This statute has never been repealed; turn to chapter 146C in your Iowa Code books and you’ll still find it there,” McDermott wrote. “A statute’s constitutional validity has never rested on some requirement that the legislature must reenact a law every time its membership changes. The legislature’s decision about whether to move forward with a constitutional amendment or an individual legislator’s decision about whether to join an amicus brief has no bearing whatsoever on our review of a statute’s constitutional validity.”

I’m bothered most by how Justice Waterman acts entitled to assume that legislators were unserious when they passed the 2018 fetal heartbeat bill. “(W)hen the statute was enacted in 2018, it had no chance of taking effect. To put it politely, the legislature was enacting a hypothetical law,” he wrote. “Today, such a statute might take effect given the change in the constitutional law landscape. But uncertainty exists about whether a fetal heartbeat bill would be passed today.”

He's wrong on both counts. McDermott torches Waterman’s use of “hypothetical,” writing, “I’ve never seen this characterization of lawmaking in a judicial opinion … You won’t find an entry for ‘hypothetical law’ in any legal dictionary, probably because when a bill is passed by both houses of the legislature and signed by the Governor, it is not ‘hypothetical law’; it is law.”

Waterman should also refrain from speculating on legislative intentions because he’s already failed to speculate correctly. Since the 2018 heartbeat bill’s passage in 2018, the GOP caucus has only gained legislators who support tougher abortion laws. Of the six GOP legislators who voted against the 2018 fetal heartbeat bill, only one remains in office. Indeed, last Tuesday, less than a month after Waterman’s opinion was inked, the legislature passed a nearly identical fetal heartbeat bill, removing any and all “uncertainty” he claimed existed.

Whether I like or dislike a law seems hardly relevant when the legal examination seems to fall short. The reasons for continued injunction here seem to do just that. The role of the court is to interpret law under specific judicial standards; not to chide the state for choosing one route to proceed over another, and certainly not to get inside the heads of lawmakers.

“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,” wrote Justice McDermott. “We fail the parties, the public, and the rule of law in our refusal today to apply the law and decide this case.” I can’t help but write a concurring opinion.

Comments: 319-398-8266; althea.cole@thegazette.com