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DES MOINES — A Drake University law professor thinks the effort by statehouse Republicans to get the Iowa Supreme Court to overturn its 2018 abortion ruling is unlikely to be successful.
It would be “highly unusual” for the Iowa Supreme Court to overturn a ruling it made just three years ago, Drake professor Sally Frank said.
“It is very, very rare for a court to overturn its own ruling only three years later,” Frank said.
In the 2018 case, Planned Parenthood sued Gov. Kim Reynolds, seeking to halt a bill approved by Republican lawmakers that imposed a three-day waiting period before a woman could obtain an abortion.
In a 5-2 decision, the Iowa Supreme Court justice said the law was unconstitutional because “autonomy and dominion over one’s body go to the very heart of what it means to be free,” and that the waiting period violated the Iowa Constitution because it was not “narrowly tailored to serve a compelling interest of the state.”
In 2020, Republicans tried again with a 24-hour waiting period for an abortion, and a judge struck down that law, citing the high court’s 2018 ruling.
Statehouse Republicans are working on multiple avenues to negate that 2018 ruling.
Using their majorities in both houses of the Iowa Legislature, Republicans this year passed an amendment to the Iowa Constitution that says the document does not specifically guarantee a woman’s right to an abortion.
If lawmakers again vote in favor of the amendment, using identical language, it could go before Iowa voters perhaps in 2024. If the amendment wins voter approval, judges may be less likely to strike down abortion restrictions.
The latest Republican effort to negate the 2018 high court ruling was introduced this week.
Sixty state legislators, all Republicans, signed onto a brief submitted by multiple conservative groups, including The Family Leader in Iowa, which asks the Iowa Supreme Court to overturn its 2018 ruling.
Attorneys representing the conservative group are arguing that the 2018 court “grossly overstepped its authority” and that “nothing in the Iowa Constitution’s text, structure, history or tradition suggests that abortion is a fundamental right.”
Three justices remain from the 2018 court that ruled on Planned Parenthood v. Kim Reynolds, including the two who dissented: Edward Mansfield and Thomas Waterman. The only justice who remains from the majority in that ruling is Brent Appel.
However, that could be one reason the current court may be unlikely to strike down the 2018 ruling, Frank said. She said courts are often hesitant to overturn a previous ruling just because new justices are on the bench.
“One of the reasons why it’s rare (for a court to overturn a recent ruling) is because it can give the impression that the sole issue is who’s on the court,” she said.
“It threatens the impression of the public of the court, because the only difference in those two or three years could be is the composition of the justices on the court,” Frank said. “So high courts usually don’t want to risk that kind of interpretation.”
Frank said courts typically are more comfortable reconsidering cases after more time has passed and when new information is relevant to the case and its ruling.
Frank said courts also are often hesitant to overturn previous rulings under a deference described by the Latin term stare decisis, which translated literally means “stand by things decided.” Or, as Frank put it, “Prior decisions hold weight.”
Frank said because of this deference, it’s not unusual for a judge who dissented on an original ruling to then oppose overturning that ruling.
She noted the example of U.S. Supreme Court Justice John Roberts, who dissented on a 2016 ruling against abortion restrictions, but two years later joined the majority in striking down similar abortion restrictions --- because of stare decisis.
While Frank sees an uphill legal path for the Republican lawmaker effort, she offered a never-say-never caveat.
“There is a very different makeup in the court, so one can never be certain,” she said.
The Associated Press contributed.