DES MOINES — Advocates and the state argued before the Iowa Supreme Court today whether provisions of a state law would place undue burden on women seeking an abortion and thus prevent them from obtaining the medical procedure.
The arguments in Des Moines this morning focused on a law passed last year that requires a woman wait up to 72 hours before getting an abortion at any stage in the pregnancy. The law also would require her to make an appointment before the waiting period to have an ultrasound, review options and be given the option to hear a description of the baby.
The law was passed by then-Gov. Terry Branstad in May and stayed on the same day by the Iowa Supreme Court until it makes it through the appeals process.
The American Civil Liberties Union of Iowa and the Planned Parenthood Federation of America, on behalf of Planned Parenthood of the Heartland, filed a lawsuit against the state contending the two provisions were unconstitutional because it adds unnecessary burdens for women seeking abortion services.
Jeffrey Thompson, solicitor general of Iowa and the attorney representing the state’s case, argued before the court that the provision of the law would not block a woman’s choice to have an abortion. That right allowed to them by the Iowa Constitution and by federal law.
The court is likely to issue a decision later this year.
In her remarks to the court, Planned Parenthood’ attorney, Alice Clapman, said the provisions would have the greatest impact on certain groups of women, including those who live in rural areas, who are low income or those in abusive relationships.
But a major point brought across by Thompson was that the law did not create undue burden on women seeking abortions. Further, he said, it would not block a woman’s choice to have the procedure, a right allowed to them by the Iowa Constitution as well as by federal law.
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Thompson also argued that the provisions of the law were to ensure Iowa women were taking the time necessary to be certain of their decision.
Clapman agreed that some women may not be sure of their decision, but said the initiative to take time to reflect on the decision should be between the provider and the patient. In addition, the 72-hour waiting period provision forced time on those who were certain of their decision.
Twenty-seven states require women seeking an abortion to go through a waiting period, according to the Guttmacher Institute, a reproductive health care policy and research organization. However, only a handful — Missouri, North Carolina, Oklahoma, South Dakota and Utah — require a 72-hour waiting period.
The justices questioned the arguments on both sides.
Chief Justice Mark Cady pushed back on an argument by Thompson based on a 2017 study from Utah that looked at the reasons why women didn’t come back for an abortion after a 72-hour waiting period. Thompson said the study showed about eight percent of women in the study changed their mind due to the waiting period, but Cady said the study did not support that evidence as it did not account for other possible factors.
Justices David Wiggins and Brent Appel both questioned Chapman on her argument of undue burden, a precedent set by the 1992 U.S. Supreme Court case Planned Parenthood v. Casey, saying it was not a strong test for this case.
Justice Thomas Waterman also questioned Clapman on Planned Parenthood’s view on shorter waiting periods, if a 24-hour waiting period should meet the same fate as a 72-hour one.
The case comes as the state’s Republican-controlled Legislature is poised to consider further abortion restrictions this session.
A Senate Judiciary Committee advanced a bill Monday — passing it through the funnel with an 8-5 vote — that would prohibit physicians from performing an abortion in Iowa if a heartbeat is detected in the fetus. It has been referred to as the heartbeat bill.
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A physician who “knowingly and intentionally” performed an abortion when there’s a fetal heartbeat detectable could be charged with a Class D felony, punishable by up to five years in prison.
Exceptions would be made in the case of a medical emergency, or a situation in which the medical procedure is performed to preserve the life of the mother that includes “a life-endangering physical condition caused by or arising from the pregnancy” but not including the woman’s age or any psychological, emotional or family conditions.
The ACLU and Planned Parenthood had appealed a decision by a Polk County District Judge Jeffrey Farrell, who upheld the law in his early October ruling.
That ruling “gives some advantage to what I believe to be the right answer, and that is what the legislature thoughtfully and wisely said,” said Chuck Hurley, vice president and chief counsel of the Family Leader after the hearing. “This is such an important decision. Seventy-two hours is an appropriate amount of time to stop a thing like (abortion).”
The 2017 law also banned most abortions after 20 weeks of pregnancy, but that provision was not a part of Wednesday’s court challenge.
“We’ve been clear before by not challenging it, we are not giving it our stamp of approval and we’re not indicating that we think it’s constitutional,” said Rita Bettis, ACLU of Iowa legal director at a news conference following the Supreme Court hearing. “Quite the contrary. But we don’t explain our litigation strategy.”
Bettis decline to comment on whether the 20-week provision would be challenged at a later date.
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