Iowa Supreme Court deadlocks 3-3 on 'fetal heartbeat' abortion ban. It won't go into effect.

Iowa's long-blocked six-week abortion ban will remain permanently unenforceable after the state Supreme Court deadlocked on whether it should be revived.

Gov. Kim Reynolds had asked the court to reinstate the so-called fetal heartbeat law, which never took effect after it was passed in 2018, in the wake of major decisions last year limiting abortion protections under the Iowa and U.S. constitutions.

A district court declined to reinstate the law in December, and Reynolds appealed to the Iowa Supreme Court. The court's 3-3 deadlock on Friday, with Justice Dana Oxley recused, means the district court's order is the final say on the matter, and the law will remain permanently blocked.

That means if Iowa Republicans want to further restrict abortion, they'll likely need to pass a new law to do so. Reynolds, a Republican, said Friday that she and GOP legislative leaders are "reviewing our options."

"The fight is not over," Reynolds said. "There is no right more sacred than life, and nothing more worthy of our strongest defense than the innocent unborn. We are reviewing our options in preparation for continuing the fight."

Planned Parenthood pledged Friday afternoon to oppose any new legislative efforts to restrict abortion.

"With its decision, the Iowa Supreme Court took away the political cover sought by Gov. Kim Reynolds and Republican politicians who want to outlaw abortion in Iowa," said Mazie Stilwell, public affairs director for Planned Parenthood Advocates of Iowa. "As we celebrate this win ... I want to be clear: We know the battle is not over. Abortion access hangs by a thread that politicians in Iowa are trying to cut."

Sharp disagreements on display in Iowa Supreme Court justices' advisory opinions

In opinions released Friday, Iowa Supreme Court Chief Justice Susan Christensen and Justices Edward Mansfield and Thomas Waterman favored affirming the district court's order blocking the law; Justices Christopher McDonald, Matthew McDermott and David May favored reversing the district court.

Because of the deadlock, however, nothing written by any of the justices is more than "their personal advisory opinion," according to Waterman.

"Nothing stated in either our opinion or the opinions that follow is the law," Waterman wrote. "None has precedential value."

More: 'Disappointment is an understatement': Kim Reynolds reacts to Iowa Supreme Court abortion decision

Waterman, in the opinion joined by Christensen and Mansfield, wrote that it would be "legislating from the bench" to allow the law to go into effect.

"The State ... now asks our court to do something that has never happened in Iowa history: to simultaneously bypass the legislature and change the law... and then to dissolve an injunction to put a statute into effect for the first time in the same case in which that very enactment was declared unconstitutional years earlier," Waterman wrote.

McDonald, in the opinion joined by McDermott and May, argued that the abortion ban should be allowed to take effect, as the injunction was based upon court decisions that have since been overturned.

"When a case adjudging a statute unconstitutional is overruled, the statute becomes operative without reenactment. This has been 'well settled' law in this state for more than a century," he wrote. "There is no 'legal uncertainty' under Iowa law; there is only my colleagues’ refusal to apply 'well settled' Iowa law."

A closer look at the disagreements in the justices' opinions

The court's 64 pages of opinions are biting. McDonald called Waterman, Christensen and Mansfield "a three-person super general assembly," writing that they "set aside that respect and caution" in their decision to not allow the law to take effect.

"I disagree with this results-oriented approach to deciding cases," he wrote.

Waterman emphasized that dissolving the injunction would be "unprecedented." He cited a 2021 Supreme Court decision that prohibits police officers from searching a person's trash without a warrant.

"It would be ironic and troubling for our court to become the first state supreme court in the nation to hold that trash set out in a garbage can for collection is entitled to more constitutional protection than a woman’s interest in autonomy and dominion over her own body," he wrote.

More: Abortion remains legal in Iowa as Supreme Court deadlocks. What to know:

All seven of the court's justices were appointed by Republican governors. Waterman, Christensen and Mansfield are the three most senior justices and voted to affirm the district court, while three of the four newest justices would have overturned the injunction.

Oxley, who was recused from the case, is also a recent Reynolds appointee, having joined the court in 2020. Although the court did not specify the reason for her recusal, Oxley previously practiced with the law firm Shuttleworth & Ingersoll, which represented the Emma Goldman Clinic in this lawsuit during her time with the firm.

What led up to this Iowa Supreme Court abortion decision?

The Iowa Legislature passed the "fetal heartbeat" law in 2018, and Reynolds signed it. It would ban nearly all abortions after about six weeks of pregnancy, when the first cardiac impulses can be detected in an embryo.

Opponents quickly filed the suit that resulted in the district court's decision blocking the law from ever taking effect.

The state did not immediately appeal that decision. But the legal landscape for abortion law has shifted drastically since then. The Iowa Supreme Court ruled last summer that the state constitution does not protect a fundamental right to an abortion, and the U.S. Supreme Court overturned the landmark 1973 Roe v. Wade case, which had legalized abortion nationwide.

As a result, Reynolds asked the courts to reconsider the six-week abortion ban. The Supreme Court heard oral arguments in April on whether the state should lift the 2019 injunction on the law and allow it to take effect.

Is abortion still legal in Iowa? By default, yes

Abortion is still legal in Iowa. Friday's ruling does not change Iowa's abortion laws.

Abortion is currently legal in Iowa up to 20 weeks of pregnancy. Patients must wait at least 24 hours between their initial appointment and the procedure.

What is the legal standard for deciding abortion cases in Iowa? It's still unclear

Courts in the U.S. must decide whether laws wrongfully restrict an individual's liberty or impose justifiable limits. To do this, laws are considered under a set of legal standards. If a law impacts a person's fundamental rights, it must meet the highest legal standard of "strict scrutiny."

Until reversing itself last year, the Iowa Supreme Court had considered abortion a fundamental right under the state constitution — so courts were likely to strike down any laws restricting abortion.

The U.S. Supreme Court in 1992 established an intermediate standard for abortion laws: the "undue burden" test. That standard focuses on whether a law excessively limits a woman's ability to obtain an abortion.

But it reversed that precedent in its Dobbs decision last summer overturning Roe v. Wade, ruling that abortion laws should be subject to what is called "rational basis review," the lowest and most permissive standard for constitutionality challenges. To pass this test, laws need only be “rationally related to a legitimate governmental interest.”

Reynolds and attorneys for the state had asked the court to set "rational basis review" as the standard for considering abortion restrictions in Iowa.

"There is no fundamental right to abortion and any law restricting it should be reviewed on a rational basis standard — a fact acknowledged today by three of the justices," Reynolds said in her statement. "Still, without an affirmative decision, there is no justice for the unborn."

Justices dispute meaning of 2015 Planned Parenthood case

Iowa's Supreme Court reversed its position on abortion last year, overturning the 2018 decision finding a fundamental right to abortion under the state constitution. But Mansfield, who authored the 2022 decision, wrote that "we do not at this time decide what constitutional standard should replace it."

Instead, Mansfield last year wrote that, "for now," the standard would revert to a 2015 ruling finding, consistent with the then-established federal precedent, that abortion restrictions should be judged by an "undue burden" standard. The district court, in declining to revive the six-week ban, cited that position, and Waterman's opinion Friday does so as well.

"We indeed left the undue burden standard in place, and all parties agree the fetal heartbeat bill is unconstitutionalunder that standard," he wrote.

McDonald's opinion interprets the 2015 ruling differently. The justice notes in his opinion that the 2015 court explicitly declined to adopt a constitutional standard, undue burden or otherwise, instead holding that Iowa's constitutional right to an abortion was “coextensive with the right available under the United States Constitution.” When the U.S. Supreme Court changed that standard to rational basis review in the Dobbs decision, McDonald said, under the 2015 decision, Iowa's standard should have shifted to rational basis with it.

"One of the reasons the plurality in (last year's decision) ... refused to announce a controlling legal standardwas that it wanted to wait and see the opinions in Dobbs because those opinions would 'impart a great deal of wisdom [the court did] not have [on that day].' Now that Dobbs has been released, my colleaguesreject the wisdom of Dobbs," McDonald writes. "But why?"

Democrats cheer court ruling but warn of further abortion restrictions — possibly in a special session

Democrats and abortion rights groups cheered the court's decision Friday, while warning Iowans to mobilize against further actions restricting abortion by Iowa's Republican legislative majorities.

"Today’s order is an enormous win, and it means that Iowans will be able to control their bodies and their futures," said Ruth Richardson, president and CEO of Planned Parenthood North Central States, the lead plaintiff in the case. "Your ZIP code shouldn’t determine who controls your uterus. Each person deserves control of their body, and Iowans have that right, based on today’s court decision."

The Iowa Legislature is scheduled to return for its 2024 session in January. However, Republicans have declined to say definitively whether they will call for a special legislative session before then to pass abortion restrictions.

"With the overturning of Roe v. Wade, our rights are at risk," Sen. Sarah Trone Garriott, D-Waukee, said in a statement. "We fully expect a new attack on reproductive rights — perhaps from Gov. Reynolds calling an unprecedented special session in the next few months."

Republicans made no mention of a special session in their statements Friday, saying only that they plan to pass new legislation to "advance pro-life policies."

"Senate Republicans have a consistent record of defending life, including the passage of the heartbeat bill," said Senate Majority Leader Jack Whitver, R-Grimes. "We will work with Gov. Reynolds and the House to advance pro-life policies to protect the unborn."

House Speaker Pat Grassley said he was "extremely disappointed" in the Supreme Court decision.

"Going forward we will work together to pass legislation that will protect life, support new mothers, and promote strong families in Iowa," he said.

Michaela Ramm contributed reporting.

William Morris covers courts for the Des Moines Register. He can be contacted at [email protected], 715-573-8166 or on Twitter at @DMRMorris.

Katie Akin is a politics reporter for the Register. Reach her at [email protected]. Follow her on Twitter at @katie_akin.

Stephen Gruber-Miller covers the Iowa Statehouse and politics for the Register. He can be reached by email at [email protected] or by phone at 515-284-8169. Follow him on Twitter at @sgrubermiller.

This article originally appeared on Des Moines Register: Iowa Supreme Court deadlocks: 6-week abortion ban won't go into effect