Fate of ‘fetal heartbeat’ law up to Iowa Supreme Court

DES MOINES — Attorneys representing Iowa Gov. Kim Reynolds and abortion rights advocates argued Tuesday in front of the Iowa Supreme Court over Reynolds’ request that the court lift an injunction on a 2018 state law that would ban abortions once a fetus’ heartbeat can be detected.

Currently, abortion is legal in Iowa until 20 weeks of pregnancy. If the Iowa Supreme Court grants Reynolds’ request to lift the injunction and allow the law to go into effect, the vast majority of abortions in Iowa would become illegal.

“We are arguing that there was a substantial change in the law based on (2022 rulings by the Iowa and U.S. Supreme Courts) that justify dissolving the injunction,” Chris Schandevel, an attorney for the Christian conservative legal group Alliance Defending Freedom, which is helping to represent the state in the case, argued to justices.

Reynolds attended Tuesday’s oral arguments in the Iowa Supreme Court chambers.

“I remain optimistic that the Iowa Supreme Court will allow the fetal heartbeat bill to take effect as the Iowa Constitution requires,” Reynolds said in a statement. ”Since the U.S. Supreme Court overturned Roe v. Wade, decision-making power has been returned to the states. Our citizens and their elected officials have chosen to promote Life and end abortion at a heartbeat, with exceptions for rape, incest, and life of the mother.”

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Peter Im, a Planned Parenthood attorney who argued before the Iowa Supreme Court, told the justices that the injunction should remain because the state has attempted to reinstate the 2018 law without going through proper legal procedures, and that the court has not stated a new legal standard by which the 2018 law should be reviewed.

“The state is asking this court to find some kind of hidden, inherent authority that’s found nowhere in the rules. It says that this court has been following the substantial change in law standard, but that standard also is not found anywhere in the rules,” Im argued.

There is no prescribed timeline for the Iowa Supreme Court to publish a rulings. Most decisions are published by the end of the court’s term; the current term ends June 30.

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 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 at all, but instead electrical impulses, and that an actual heartbeat does not occur until roughly 17 to 20 weeks of pregnancy.

Iowa’s fetal heartbeat legislation was passed into law by the Republican-majority Iowa Legislature in 2018 and signed by Reynolds, but immediately was halted by the state courts. In 2019, the Iowa Supreme Court ruled the law unconstitutional, writing that the right to an abortion is guaranteed by the Iowa Constitution.

Just three years later and with a new makeup, however, the Iowa Supreme Court in 2022 overturned that ruling, just before the U.S. Supreme Court also overturned its ruling in the Roe v. Wade case from 1973 that for decades had created a federal right to an abortion.

Shortly after those two rulings, Reynolds asked the Iowa courts to lift the injunction that had been placed in the 2018 state law. That request was dismissed by a district court judge, and Reynolds appealed that decision to the state.

Schandevel on Tuesday told the justices that because the courts no longer recognize a fundamental right to an abortion, and because there has been a substantial change in the law with those 2022 decisions by the Iowa and U.S. Supreme Courts, the Iowa Supreme Court should reverse its 2019 ruling and allow the fetal heartbeat law to go into effect.

“They made a lot of procedural arguments that we think were designed to try to prevent the court from reaching the merits, because we think the merits of this question, the law is so clearly on our side, that this law is a rationale, reasonable effort by the state to protect life based on the fetal development of the unborn child,” Schandevel told reporters after oral arguments. “So their procedural arguments, as we told the court today, the law is on our side on all of those arguments as well.”

Im argued that neither the 2018 law nor the legal standard by which it should be reviewed has changed, thus it remains unconstitutional and the court’s 2019 ruling should stand and the law remain blocked.

Im told reporters that their contention is that the court never changed the legal standard by which the 2018 law should be reviewed, and thus the law should remain blocked.

“Undue burden remains the (legal) standard in Iowa, and under the undue burden test, the ban is just unconstitutional, full stop,” Im said.

The seven-member Iowa Supreme Court currently is comprised of five justices appointed by Reynolds and two by previous Gov. Terry Branstad, also is a Republican.

Justice Dana Oxley recused herself from the case, Schandevel said. Oxley was not present for oral arguments on the case, but was for the following case on the court’s schedule Tuesday. In the 2022 case where justices ruled the Iowa constitution does not guarantee the right to an abortion, Oxley participated then and joined the majority.

The Iowa Supreme Court’s spokesman said he is not made aware of when justices recuse themselves, and thus could not speak to why Oxley recused herself this time.

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