Through judicial review, abortion fight in Iowa continues

Last week, I opined that the special session called to pass a new “heartbeat” bill, legislation to restrict abortion after the detection of cardiac activity in the womb, shouldn’t have happened at all. The session was called after the Iowa Supreme Court issued a decision on June 16, denying in a 3-3 split decision a request by Gov. Reynolds to lift the permanent injunction on the 2018 heartbeat bill, allowing a lower court’s decision to stand. A large portion of the opinion authored by Justice Thomas Waterman cited discretionary reasons that I found to be outside the lines of judicial reasoning, to the point that I concluded that the 2018 law should have been allowed to go into effect, even though I didn’t favor the law itself.

Since last week, another court decision has dropped, and once again, the state is barred from enforcing its latest abortion law. I don’t have the same qualms with last Monday’s decision from District Court Judge Joseph Seidlin as I did the Iowa Supreme Court’s decision from last month. Without the same kind of speculation that clouded Waterman’s opinion, Seidlin’s decision returned the judicial focus to where it should solely lie: The Iowa Court’s Rules of Civil Procedure, case law, and the appropriate standard of review.

With a number of different abortion-related laws passed over the last decade and a number of challenges made in state court, it can be easy to confuse each law, each challenge, each outcome, and each standard of review used to determine the outcome. Although I touched on those cases last week, it’s worth it to again review three Iowa Supreme Court cases that have significantly affected the state of abortion law and abortion legal theory in Iowa. Each case includes Planned Parenthood of the Heartland as a main adversary and is referred to using the acronym “PPH.” Some citations refer to the cases in numerical order, i.e. PPH I, PPH II, etc. Others refer to the cases by the year they were decided. For clarity, I prefer the latter.

PPH 2015: Undue burden standard

In PPH 2015, Planned Parenthood challenged the ban on abortion by “telemedicine,” a rule by the Iowa Board of Medicine requiring a physician to “personally perform a physical examination and to be physically present” when an abortion-inducing medication is provided. In that case, the Board of Medicine conceded that the Iowa Constitution recognized a right to an abortion only insofar as it was recognized under the U.S. Constitution, which used a standard of review called the undue burden test, considering whether a restriction had the effect of placing “substantial obstacles in the path” of a woman seeking abortion before the age of viability.

In PPH 2015, Planned Parenthood had asked the Iowa Supreme Court at that time to recognize a broader right to an abortion under the Iowa Constitution, and therefore adopt a more stringent standard of review called strict scrutiny. The court declined to consider that broader right. Satisfied that the Board of Medicine had conceded that the telemedicine rule would violate an Iowa woman’s right under the undue burden test established by federal precedent, the court stated that it “need not decide whether the Iowa Constitution provides such a right.”

PPH 2018: Strict scrutiny standard

In PPH 2018, the Iowa Supreme Court ruled that a 72-hour mandatory waiting period to receive an abortion, part of a law passed in 2017, was unconstitutional under the due process and equal protection clauses of the Iowa Constitution. In this decision, the Court ruled that the Iowa Constitution did protect abortion as a fundamental right subject to strict scrutiny, the toughest standard of review. Under strict scrutiny, the government must have a compelling reason to restrict a right, and even then must tailor any restriction narrowly.

PPH 2022: Rational basis, or no set standard?

In PPH 2022, the court overruled PPH 2018. At the heart of the case was a 24-hour waiting period for an abortion, passed by the legislature in 2020. In making its ruling, a 5-2 majority found that “the Iowa Constitution is not the source of a fundamental right to an abortion necessitating a strict scrutiny standard of review for regulations affecting that right.”

What PPH 2022 did not do was settle on a standard of review to replace the strict scrutiny standard. On that issue alone, the court was split: Justices Edward Mansfield, Thomas Waterman and Dana Oxley made no suggestions, stating that the court “should not go where the parties do not ask” it to go. Justices Matthew McDermott and Christopher McDonald advocated for the least strict standard of review, called the rational basis test, under which the state need only show a legitimate interest in passing the law and a rational connection between the law and its objectives. Justice Susan Christensen, dissenting from the decision to overrule PPH 2018, would have retained the strict scrutiny standard. Since-retired Justice Brent Appel, who dissented from the decision to overrule PPH 2018, stated that if the strict scrutiny standard were abandoned, he would replace it with the undue burden standard.

So, we’ve got three standards of review when considering abortion laws and abortion rights in the Iowa Supreme Court: Rational basis, undue burden, and the toughest-of-all strict scrutiny, which the court now states is not necessary when considering if abortion is a state constitutional right. Why do these standards matter so much? Because although it is currently enjoined, the state of Iowa’s latest abortion law remains in court. In the very likely event that the legal challenge is decided by the Iowa Supreme Court, the law’s constitutionality will surely come down to the standard of review the court adopts.

Which standard tips the scales?

Aside from Justice Waterman’s riffing on discretionary issues, an appropriate standard of review was another source of contention in last month's Iowa Supreme Court decision to deny dissolution of the 2018 heartbeat bill injunction. The prevailing three justices insisted that the decision in PPH 2022 found that in place of the now-inapplicable strict scrutiny standard, the undue burden standard from PPH 2015 would apply. Since all parties had already agreed that the 2018 heartbeat bill was unconstitutional under that standard, the bill would still be deemed unconstitutional — even after the significant change in judicial theory prompted by PPH 2022 (and especially by Dobbs v Jackson at the federal level.) But the opposing three justices disagreed that the court ever adopted the undue burden standard in PPH 2015. Rather, they contended, the court declined to consider any constitutional right to terminate a pregnancy in PPH 2015, prompting no occasion to adopt any standard of review at that time.

Had the justices not been deadlocked over whether the undue burden standard should apply, June’s decision over lifting the 2018 bill’s injunction could have been different.

District Judge Seidlin clearly appreciates that deadlock over the standard of review. In his Monday decision to enjoin the latest heartbeat bill he acknowledged both sides of the argument: that the undue burden test is currently the “controlling precedent” his court must follow, thus suggesting that Planned Parenthood is likely to succeed on their claim that the new heartbeat bill is unconstitutional; and that the assertion that the undue burden standard was adopted in error “may be a valid argument.”

“Undue burden is where our Supreme Court’s jurisprudence on the issue has left off, with an invitation to litigate the issue further. This, perhaps, is the litigation that accepts the invitation, and the jurisprudence will pick up again and presumably further refine or define the governing standard,” wrote Seidlin. “ … But any decision to apply [a different standard of review] in this case will have to come from our Supreme Court.”

So, the legal process certainly isn’t over. Neither is the fight over abortion laws in Iowa.

Courts: Friend or foe

I dislike how people treat the courts as either their savior or their betrayer. When justices rule our way, we love them. We exalt them. They’re heroes in the defense against tyranny. When they rule the other way, we hate them. We curse them. Conservatives want retentions blocked, liberals scream to expand the court (as long as a Democrat is President.) We’ve seen it time and time again: Burwell v Hobby Lobby. Obergefell v. Hodges. Varnum v. Brien. Dobbs v. Jackson. Biden v. Nebraska. Who cares about the rule of law when rage rules the day?

Yet this is the process we embrace when we set out to accomplish our goals through that same rule of law. Laws passed by a legislative majority. Laws enforced through executive rule-making. Laws interpreted using determined standards and precedents. We can say we love it or we can say we hate it. How many can say they respect it?

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