IOWA CITY — Abortion providers dropped their request Wednesday for an emergency injunction against an order from Gov. Kim Reynolds banning “non-essential” surgeries during the COVID-19 pandemic after it became clear the order doesn’t forbid all surgical abortions.
During a brief hearing in Johnson County District Court, Rita Bettis Austen, an attorney for the American Civil Liberties Union of Iowa on behalf of Planned Parenthood of the Heartland in Des Moines and the Emma Goldman Clinic in Iowa City, said the providers’ motion was being withdrawn.
Iowa Solicitor General Jeffrey Thompson, an attorney for Reynolds and others named in the petition filed last week, said he did not object.
Sixth Judicial District Judge Andrew Chappell, in an order filed later, said that the ACLU realized after reading Thompson's response to its petition that the governor’s directive was "nuanced" and suspended only "non-essential" surgical abortions — those that can be delayed, but not all.
According to the agreement, Thompson acknowledged that when determining whether a surgical abortion can be delayed without undue risk to the woman, there also should be consideration of other medical factors — like whether the timing of the patient’s pregnancy would prevent the woman from obtaining a legal abortion after the directive expires.
Chappell, in his order, said in reviewing briefs submitted by ACLU it appeared the providers had believed the order banned almost all surgical abortions. Both providers already intended to determine what procedures, including surgical abortions, could be delayed without undue risk to their patients.
After the stipulation, both sides in the dispute claimed victory.
“Today, the court entered an order by agreement of the parties that allows physicians to treat abortion the same as other procedures and allows them to make a case-by-case determination for each patient,” Planned Parenthood and Emma Goldman Clinic said in joint statement. “Therefore, Planned Parenthood will resume seeing patients for in-clinic procedures, in compliance with Gov. Kim Reynolds’ proclamation.”
Reynolds’ spokesman said in a statement the governor was “pleased that her proclamation remains in full effect and that surgical abortions will not be exempted from this suspension of non-essential and elective surgeries.”
The providers, in their petition, had argued the Republican governor’s proclamation violated women’s rights under the Iowa Constitution and “severely jeopardizes their health, safety and welfare.”
Reynolds told reporters last week that abortion procedures were included in her proclamation, prohibiting “non-essential or elective procedures” in an effort to reduce hospital capacity and personal protective equipment such as masks and gloves during the COVID-19 pandemic.
The providers, argued abortion care is essential and can’t be delayed.
The petition noted that Iowa law bans abortion past 22 weeks of pregnancy, and women have up to only 11 weeks after becoming pregnant to choose between a medication abortion — taking medications to end the pregnancy — and an abortion by procedure.
After 11 weeks, only abortion by procedure is available in Iowa.
An abortion by procedure, commonly referred to as “surgical abortion,” isn’t necessarily a surgery, the petition states. It’s an outpatient procedure without incision or general anesthesia and no sterile area is required.
Thompson, in response to petition, argued the suspension of non-essential surgeries is necessary to respond to the current health crisis, which is temporary. The proclamation expires April 16 unless the governor changes it.
The pandemic poses a “grave threat to public health in Iowa,” and requires comprehensive response from state government and “some degree of sacrifice from citizens,” he argued.
The provider groups said they already had taken steps to conserve protective equipment by reducing patient volume and postponing certain procedures.
Iowa is among six states — also Ohio, Oklahoma, Texas, Alabama and Mississippi — that had similar petitions filed by ACLU and Planned Parenthood affiliates to stop officials from banning abortion procedures during the pandemic. Those other states’ governors also cited the need to preserve personal protective equipment.
A federal appeals court ruling allows, at least for now, Texas Gov. Greg Abbott to continue to ban abortion procedures during the COVID-19 crisis.
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