Six years ago, the Iowa Supreme Court found the state constitution guaranteed the right to an abortion.
“Autonomy and dominion over one’s body go to the very heart of what it means to be free,” then-Chief Justice Mark Cady wrote in the 2018 decision striking down a medically unnecessary 72-hour waiting period for an abortion signed into law by Gov. Terry Branstad. “At stake in this case is the right to shape, for oneself, without unwarranted governmental intrusion, one’s own identity, destiny, and place in the world. Nothing could be more fundamental to the notion of liberty.”
According to Cady, the Iowa Constitution offered stronger protection for the right to choose an abortion than the U.S. Constitution did.
On Friday, the Iowa Supreme Court issued its latest decision on abortion. The court ruled 4-3 to lift the injunction against a law passed last year banning almost all abortions in the state after six weeks of pregnancy, before many people realize they are pregnant. The court said there is no fundamental right to abortion in Iowa, and any laws restricting it only need to pass the lowest level of judicial review, the “rational basis test.” Almost any law pass by a legislature, regardless of how burdensome it is, can pass the rational basis test.
“We’re deeply disappointed in the Iowa Supreme Court’s decision to uphold a near-total abortion ban in the state,” Francine Thompson, executive director of the Emma Goldman Clinic in Iowa City, said during an online news conference following the court’s decision. “We’re disappointed but we’re not surprised. And it is worth noting, however, that it has been almost exactly two years to the day of the U.S. Supreme Court’s decision in Dobbs that overturned Roe v. Wade.”
“The momentum from that decision has profoundly changed the landscape of abortion access in the U.S.”
The Emma Goldman Clinic, along with Planned Parenthood of the Heartland (PPH) and Dr. Sarah Trexler, PPH’s medical director, filed a lawsuit to overturn the six-week abortion ban Gov. Reynolds signed into law in July 2023.
The new law was passed during a one-day special session of the Iowa Legislature called by the governor for the sole purpose of passing the ban. It passed with only Republican support.
The new law prohibits almost all abortions after any cardiac activity can be detected in an embryo by an ultrasound probe. There are narrow and burdensome exceptions for rape and incest victims, as well as exemptions for cases where the embryo or fetus has a condition “incompatible with life,” the life of the patient is in immediate danger, or continuing the pregnancy would pose a “serious risk of substantial and irreversible impairment of a major bodily function” for the patient. The new law specifically prohibits consideration of the mental health impact of the pregnancy.
Gov. Kim Reynolds and the law’s supporters refer to it as the “fetal heartbeat” law, but that name is a political misnomer that deliberately distorts the facts about what it does. An ultrasound probe — which the law mandates — can typically register some cardiac activity six weeks into a pregnancy, but at that stage the heart has not formed yet, and the embryo has not developed into a fetus.
Three days after Reynolds signed the law, Polk County District Court Judge Joseph Seidlin issued a temporary injunction stopping it from being enforced. The governor appealed that decision to the Iowa Supreme Court, which issued its ruling on Friday morning.
The most profound change at the Iowa Supreme Court since Cady’s 2018 decision has been who sits on the court. Chief Justice Cady died unexpectedly in November 2019, and starting in 2018, Gov. Reynolds has appointed five of the court’s seven justices.
Reynolds has declared banning abortion in Iowa to be a top priority since she took office in May 2017, after Terry Branstad stepped down to join the Trump administration.
Speaking at the 2019 annual summit meeting of The Family Leader — a rightwing Christian political organization — about the possibility of restricting abortion, Reynolds said, “Elections matter, and fortunately, the tide is turning in Iowa’s Supreme Court. In just two short years, we’ve moved the needle from left to right.”
At the time, the governor had only made two of her five appointments to the court. Reynolds staged a signing ceremony for the near-total abortion ban at The Family Leader’s 2023 summit meeting.
“I’m glad that the Iowa Supreme Court has upheld the will of the people of Iowa,” Reynolds said in a written statement after the court’s decision on Friday.
An Iowa Poll conducted in March 2023 found that 61 percent of Iowans believe abortion should be legal in most or all cases. Other polls have shown similar results.
The temporary injunction issued by Judge Seidlin last July found that the new abortion ban would create an “undue burden” on patients seeking an abortion, and would therefore violate their due process rights under the Iowa Constitution. Seidlin was relying on the standard set in the June 2020 Iowa Supreme Court decision on a medically unnecessary 24-hour waiting period for an abortion.
In its 2018 decision, the court found that because there was a fundamental right to an abortion as part of an Iowan’s constitutionally guaranteed autonomy and control of their own body, any restriction on abortion must be submitted to “strict scrutiny,” the highest level of judicial review. In the June 2020 decision, the court overturned that standard, allowing the waiting period to go into effect.
Writing for the divided majority, Justice Edward Mansfield rejected “the proposition that there is a fundamental right to an abortion in Iowa’s Constitution subjecting abortion regulation to strict scrutiny.” The justice added that the court would not “at this time decide what constitutional standard should replace it.”
Because that decision was issued a week before the Republican-appointed justices on the U.S. Supreme Court overturned Roe, the controlling federal standard was the undue burden test created in the high court’s 1992 Casey decision, which reaffirmed the right to an abortion. That test is an intermediate standard between strict scrutiny and rational basis. Mansfield instructed courts to use that standard, acknowledging the U.S. Supreme Court might strike it down in the future.
Judge Seidlin said in his decision last year that he was bound by Iowa Supreme Court precedent to use the undue burden standard in evaluating the six-week ban. The Reynolds administration argued that since the Casey decision had been nullified by the U.S. Supreme Court’s Dobbs decision, the undue burden standard no longer existed for abortion restrictions and the rational basis standard should apply. The four-justice majority on the Iowa Supreme Court agreed with that argument.
“Under our well-established tiers of scrutiny, if the government action implicates a ‘fundamental’ right, we apply the strict scrutiny test and determine whether the government’s action is narrowly tailored to serve a compelling government interest,” Justice Matthew McDermott wrote for the majority. “But if the right at stake is not a fundamental right, then we apply the rational basis test and determine whether the law is rationally related to a legitimate state interest.”
McDermott said the Reynolds administration had presented several legitimate state interests that would be served by banning almost all abortion after six weeks of pregnancy. The justice said his decision was based on Justice Mansfield’s 2020 decision that found there was no “fundamental right to an abortion in Iowa’s Constitution subjecting abortion regulation to strict scrutiny.”
But Mansfield, who was one of the three dissenting justices in the case, said the majority was distorting his opinion.
In his dissent, Mansfield wrote that he never asserted the right to an abortion wasn’t a fundamental right, just that it wasn’t one requiring strict scrutiny.
“There are fundamental rights that the state can regulate without triggering strict scrutiny,” Mansfield wrote. “One example is voting.”
Mansfield said an intermediate level of scrutiny — the undue burden standard used by Judge Seidlin — was the correct standard, because it balances the fundamental right to bodily autonomy with the legitimate interests of the state in regulating pregnancy.
“But the court around me has shifted,” he said. “So, instead of a constitutional rule that gives no weight to the State’s interest in human life, we now have in Iowa a constitutional rule that gives no weight to a woman’s autonomy over her body.”
Chief Justice Susan Christensen and Justice Thomas Waterman joined Mansfield in his dissent.
The majority also heavily relied on the idea that the right to an abortion isn’t a well-established right in Iowa, in part because it was not included in the Iowa Constitution, which was adopted in 1857.
Chief Justice Christensen dealt with that argument in her own strongly worded dissent, which was joined by Mansfield and Waterman.
“Today, our court’s majority strips Iowa women of their bodily autonomy by holding that there is no fundamental right to terminate a pregnancy under our state constitution,” the chief justice wrote. “I cannot stand by this decision. The majority’s rigid approach relies heavily on the male-dominated history and traditions of the 1800s, all the while ignoring how far women’s rights have come since the Civil War era. It is a bold assumption to think that the drafters of our state constitution intended for their interpretation to stand still while we move forward as a society.”
Christensen noted that, “Not only did women have no say in the drafting of our state constitution, but they had no input in the statutes being enacted in the state legislature and no ability to vote for the elected officials responsible for these statutes,” until the 1920s. Even after that, “generations of women in Iowa faced multiple layers of exclusion and discrimination.”
“So is it any wonder why Iowa is not flush with legal history demonstrating that a medical procedure specific to women is a deeply rooted part of our state’s tradition?” Christensen asked.
“Of course, women now play a far greater role in shaping society than they did in the middle of the nineteenth century,” the chief justice noted later in her 32-page dissent. “The political actors responsible for the statute at issue [the six-week ban] include significant female representation in leadership roles in both the general assembly and the governor’s office, along with a female attorney general whose office is tasked with defending the statute. The overwhelming majority of these women have spent most—if not all—of their lives with the ability to choose whether to continue a pregnancy under the United States Supreme Court’s 1973 decision in Roe v. Wade.”
Christensen said the very limited exceptions included in the ban to allow for an abortion after six weeks are “impractical” and “likely to generate new constitutional challenges.”
“Frankly, in many of these situations, they serve as another example of how this statute prioritizes the unborn over the living, placing pregnant women in grave harm in the process,” she wrote.
According to the chief justice, “the only female lives that this statute treats with any meaningful regard and dignity are the unborn lives of female fetuses.”
The majority decision sends the case back to Judge Seidlin with an order to lift the injunction. Under Iowa’s rules of appellate procedure, it will take at least 21 days for the case to be returned to Seidlin. It is expected he will immediately end the injunction. The six-week abortion ban will then be in effect.
During the news conference on Friday afternoon, both the Emma Goldman Clinic’s Thompson and President and CEO of Planned Parenthood North Central States Ruth Richardson said their organizations would continue to serve the needs of their patients while following the new abortion law when it goes into effect. That may include helping patients find abortion services in neighboring states where the procedure remain legal.
“We’re disappointed but we’re not despondent,” Thompson said. “We’re angry, but we’re not blindly furious.”
“The Emma Goldman Clinic will remain open, providing life-saving and life-changing healthcare … We want our clients to know that we are here, ready to help them navigate the chaos and confusion this ban will bring.”
Thompson and Richardson said Emma Goldman and Planned Parenthood had been preparing for years for a decision like the one handed down on Friday.
“We’re focused and we’re ready to continue the battle to restore dignity, bodily autonomy and access to full-spectrum reproductive healthcare, which includes abortion and which all Iowans deserve,” Thompson said.