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Deadlocked Iowa Supreme Court means abortions legal for now
A 3-3 decision — with one justice not voting — on the so-called fetal heartbeat bill means abortion remains legal in the state until the 20th week of pregnancy
Jun. 16, 2023 9:09 am, Updated: Jun. 16, 2023 7:08 pm
DES MOINES — Abortion will remain legal in Iowa until roughly 20 weeks of pregnancy — for now — after the Iowa Supreme Court could not agree in an opinion Friday whether to reinstate a law what would have largely banned them.
The Iowa Supreme Court was divided, 3-3, with one justice recusing herself, on the question of whether to revive a 4-year-old law — previously blocked by state courts — that would have banned abortions once a fetus’ heartbeat can be detected.
By state law, the Supreme Court’s split opinion means the lower court’s ruling remains in place: a district court judge’s ruling in 2019 and again earlier this year that the so-called fetal heartbeat law violates the Iowa Constitution is upheld and final.
Advocates for legal access to abortion services, along with statehouse Democrats, celebrated the outcome Friday.
“We know that many Iowans were depending on the outcome of this case today. And we are celebrating the preservation of our freedom, health and safety,” said Rita Bettis Austen, legal director for the ACLU of Iowa, which was a part of the legal team that represented the plaintiffs fighting the law.
Republican Iowa Gov. Kim Reynolds — who asked the courts to reinstate the 2018 fetal heartbeat law after 2022 decisions by the Iowa and U.S. Supreme Courts opened the legal door to stronger abortion restrictions — and Republican statehouse leaders joined abortion opponents in expressing their disappointment with Friday’s outcome.
“To say that today’s lack of action by the Iowa Supreme Court is a disappointment is an understatement,” Reynolds said in a statement. “Not only does it disregard Iowa voters who elected representatives willing to stand up for the rights of unborn children, but it has sided with a single judge in a single county who struck down Iowa’s legislation based on principles that now have been flat-out rejected by the U.S. Supreme Court.
“There is no fundamental right to abortion and any law restricting it should be reviewed on a rational basis standard — a fact acknowledged today by three of the justices,” she added. “Still, without an affirmative decision, there is no justice for the unborn.”
The three justices who voted to let stand the district court ruling that said the so-called fetal heartbeat law remains unconstitutional were Chief Justice Susan Christensen, Thomas Waterman and Edward Mansfield. In their opinion, written by Waterman, they note the unprecedented scope the legal asks made by Reynolds.
“The State appealed, and now asks our court to do something that has never happened in Iowa history: to simultaneously bypass the legislature and change the law, to adopt rational basis (legal standard of) review, and then to dissolve an injunction to put a statute into effect for the first time in the same case in which that very enactment was declared unconstitutional years earlier,” Waterman’s opinion said. “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.”
The three justices who voted to overturn the lower court’s ruling were Christopher McDonald, Matthew McDermott and David May.
“My three colleagues who decline to grant the State’s writ of certiorari begin their opinion with the declaration, ‘This case is extraordinary,’ and then proceed to explain why this case is so unextraordinary that we shouldn’t bother to exercise our discretion to decide it,” McDermott wrote. “Refusing to exercise our discretion to take on this case — more pointedly stated, ducking it — is, in my view, wrong.
“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,” he added.
Justice Dana Oxley recused herself from the case. She did not publicly state a reason for her recusal, and a spokesman for the court did not elaborate. But Oxley previously worked for the Cedar Rapids-based law firm of Shuttleworth and Ingersoll, which represented one of the plaintiffs in the case, the Iowa City-based Emma Goldman Clinic.
All seven Iowa Supreme Court justices were appointed by the state’s past two governors — Reynolds and Terry Branstad, both Republicans. Waterman and Mansfield are the last remaining justices who were appointed by Branstad. The other five justices were appointed by Reynolds, who has been governor since 2017.
What comes next
Among the biggest questions now are when and how statehouse Republicans will begin another legislative effort to place more restrictions on abortions.
Republicans could write another law that further restricts abortions. That law surely would also be challenged in the courts, and likely would ultimately return to the Iowa Supreme Court, where justices may be required to determine whether a different legal standard of review should now be applied.
Republicans also could see through a proposal to amend the Iowa Constitution to clearly state it does not guarantee an Iowan’s right to abortion. Amending the state constitution requires passage through consecutive two-year sessions of the Iowa Legislature, plus a public vote. Lawmakers have approved the proposed amendment once; they would need to pass it again by 2024 and then put it to a public vote.
Republicans also have multiple options as to when they take their next step. The regular work of the 2023 Iowa Legislature concluded in early May, but Reynolds could call for a special session. Otherwise, the next regular legislative session begins in January.
In her statement, Reynolds said statehouse Republican leaders “are reviewing our options in preparation for continuing the fight.”
What state lawmakers and party officials are saying
Reactions to the Iowa Supreme Court’s opinion issued Friday were abundant.
Iowa Senate Majority Leader Jack Whitver, a Republican from Grimes, and Iowa House Speaker Pat Grassley, a Republican from New Hartford, issued statements alongside Reynolds’, also expressing their disappointment in the split opinion.
“I disagree with the Supreme Court’s opinion today,” Whitver said. “Their decision a year ago, correctly overturning the 2018 decision, should reasonably be considered a substantial change in the law and the injunction should have been lifted. Senate Republicans have a consistent record of defending life, including the passage of the heartbeat bill. We will work with Gov. Reynolds and the House to advance pro-life policies to protect the unborn.”
Said Grassley, “I’m extremely disappointed in the Supreme Court’s opinion today. We feel strongly that the heartbeat bill is a good piece of legislation that would save the innocent lives of unborn children. Going forward, we will work together to pass legislation that will protect life, support new mothers, and promote strong families in Iowa.”
Minority-party Statehouse Democrats celebrated the ruling and said they would continue pushing to preserve abortion rights. They warned Republicans would move to pass further restrictions on abortion.
Iowa House Democratic leader Jennifer Konfrst, of Windsor Heights, said the decision should “be a wake-up call for the Governor and GOP lawmakers to start listening to Iowans.” Polling shows more than 60 percent of Iowans support abortion rights in all or most cases.
“While today’s ruling is a victory, I know the fight for reproductive freedom is far from over,” Konfrst said. “Gov. Reynolds and Republican politicians will never stop playing politics to strip away our rights.”
House Democrats made protecting abortion rights a key piece of their legislative agenda earlier this year, introducing a constitutional amendment that would enshrine the right to an abortion and reproductive health care.
Iowa Sen. Sarah Trone Garriott, a Democrat from Waukee, said she expects Republican lawmakers to set new restrictions on abortion, and suggested Reynolds may call a special session to do just that.
“Senate Democrats stand with the majority of Iowans who support safe and legal access to abortion. Now is the time to defend our rights,” she said in a statement. “Tell your legislators that you refuse further attacks on abortion rights.”
What policy advocates are saying
Groups that advocate for strong abortion restrictions lamented Friday’s split opinion.
The conservative Christian organization The Family Leader in a statement called the ruling “profoundly disappointing.”
“Unfortunately, today’s ruling will result in more children killed, more women wounded, and only delays the day when all innocent life is cherished and protected by law,” the organization’s statement said.
Maggie DeWitte, executive director of Pulse Life Advocates, called the court’s split opinion “extremely disappointing,” but referred to Republican lawmakers’ ability to attempt to pass another abortion restriction that will pass legal muster.
“We will continue to fight for all Iowans. This ruling only delays the day when all innocent life is cherished and protected. We continue our work in Iowa to educate on the sanctity of human life,” DeWitte said.
Matt Sinovic, executive director of liberal advocacy organization Progress Iowa, said the ruling was a “call to action for every Iowan who values their freedom.”
“Governor Reynolds and other MAGA, anti-abortion Republicans in Iowa want to change both the courts and the constitution,” he said in a statement. “As supporters of abortion access, we are the majority and we aren’t going anywhere. We hope everyone who values their freedom will join the fight to secure the right of every Iowan to be in charge of their bodies.”
How we got here
In 2018, the Republican-majority Iowa Legislature passed and Reynolds signed into law a bill that would ban abortions once a fetus’ heartbeat can be detected.
Supporters of so-called fetal heartbeat laws say they ban abortions roughly around the sixth week of pregnancy, which often is before a woman is aware she is pregnant. Abortion rights advocates say such a prohibition would end 98 percent of the now-legal abortions in Iowa.
However, some major medical organizations, like the American College of Obstetricians and Gynecologists, note that what is detected at six weeks is not a heartbeat, but instead electrical impulses, and that an actual heartbeat does not occur until roughly 17 to 20 weeks of pregnancy.
That law was immediately challenged in the state courts by the women’s reproductive health care and abortion services provider Planned Parenthood.
In 2019, a Polk County District Court Judge ruled the fetal heartbeat bill unconstitutional, saying it violates the due process and equal protection provisions of the Iowa Constitution.
Reynolds did not appeal the ruling at that time because, she said, of recent precedent. In June 2018, the Iowa Supreme Court ruled that another Republican-proposed abortion restriction — a three-day waiting period before a woman could have an abortion — was unconstitutional. Then-Chief Justice Mark Cady’s opinion described “the constitutional right of women to terminate a pregnancy.”
Just one week apart in June of 2022, the Iowa Supreme Court and the U.S. Supreme Court handed down separate rulings that effectively eliminated guarantees to a woman’s right to an abortion at both the federal level and in Iowa.
The Iowa Supreme Court’s decision overruled that 2018 opinion that said Iowa women have a state constitutional right to terminate a pregnancy. And the U.S. Supreme Court turned the issue back to states to decide, overturning the Roe v. Wade decision of five decades ago.
In the wake of those rulings, Reynolds asked the Iowa courts to lift the injunction and allow the 2018 fetal heartbeat bill to become Iowa law. In December of 2022, a district court judge rejected Reynolds’ request, a ruling appealed to the Iowa Supreme Court.
Caleb McCullough of The Gazette-Lee Des Moines Bureau contributed.
Comments: (515) 355-1300, erin.murphy@thegazette.com
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