Iowa Supreme Court says fundamental right to abortion not guaranteed under state constitution

The state Supreme Court on Friday overturned its 2018 decision that said Iowans had a fundamental right to abortion under the state constitution.

Friday's ruling — coupled with the potential overturn by the U.S. Supreme Court of Roe v. Wade, the 1973 decision that established a nationwide right to abortion — would give Iowa lawmakers significantly more latitude to pass and enforce restrictive abortion laws.

The Iowa Supreme Court's fractured decision came in a challenge over a 2020 law authorizing a 24-hour waiting period before an abortion. It was unclear Friday whether the decision means that the law, which had been enjoined by a district judge, will take effect. Representatives of Planned Parenthood of the Heartland, which challenged the law, said they are operating under the assumption it does.

The majority opinion said the court's previous ruling establishing a constitutional right to an abortion "insufficiently recognizes that future human lives are at stake.” It sent the case back to a lower court for reconsideration.

More: Iowa lawmakers can't immediately ban abortion. Here's what they did instead.

Planned Parenthood in its challenge to the waiting period argued that the law's passage had violated procedural rules and that it was an unconstitutional burden on women seeking abortions.

The composition of the Supreme Court has shifted since the 2018 decision, with Gov. Kim Reynolds, a Republican, appointing four of the seven justices.

More: Read the Iowa Supreme Court's full opinion on abortion

While rejecting the finding of a state constitutional guarantee of the right to abortion, Friday's decision did not say what the new standard should be.

"Although we overrule (the 2018 decision), and thus reject the proposition that there is a fundamental right to an abortion in Iowa’s Constitution subjecting abortion regulation to strict scrutiny, we do not at this time decide what constitutional standard should replace it," Justice Edward Mansfield wrote in the majority opinion.

How will the decision impact Iowa abortion laws?

Republican leaders in Iowa have repeatedly passed laws to impose waiting periods or forbid abortion much earlier in pregnancy than currently permitted, only to see those laws blocked by the courts.

Friday's decision means anti-abortion lawmakers in Iowa will be less restrained, if at all, by state-level constitutional protections, which otherwise would have remained in place even if the Roe case is overturned.

Gov. Kim Reynolds celebrated the decision in a Friday morning statement.

“Today’s ruling is a significant victory in our fight to protect the unborn. The Iowa Supreme Court reversed its earlier 2018 decision, which made Iowa the most abortion-friendly state in the country," Reynolds said. "Every life is sacred and should be protected, and as long as I’m governor that is exactly what I will do.”

For the moment, Iowa lawmakers must still contend with Roe, which protects the right to an abortion before the fetus is viable outside the womb.

But if the U.S. Supreme Court adopts a leaked draft of a majority opinion in its upcoming decision, Roe will be reversed, giving individual states leeway to pass and enforce laws that limit abortions even in the earliest weeks of pregnancy.

Reynolds has declined to speculate about whether she will call lawmakers back to Des Moines for a special session on abortion.

House Speaker Pat Grassley, R-New Hartford, said the decision "is a positive step in our fight to protect the unborn." He did not offer specific legislative plans but reaffirmed the opposition of his caucus to abortion.

"As we work to understand the full impact of this decision, Iowans can be assured that Iowa House Republicans are strongly pro-life and remain committed to protecting the unborn and providing additional support for new mothers," Grassley said.

Democrats decried the ruling. House Minority Leader Jennifer Konfrst said it was a "step backwards for Iowa families."

"Iowans should always have the final say in making their own health care decisions, including abortion, without interference from politicians," Konfrst, D-Windsor Heights, said in a statement.

A spokesperson for the Iowa Attorney General's Office, which defended the waiting period law in court, declined to comment, saying the office was studying the ruling and preparing for further proceedings.

'Keep working and keep pushing': Activists focused on next steps

Maggie DeWitte, executive director of the anti-abortion group Pulse Life Advocates, waited with a cup of coffee for the decision to post on the Supreme Court website Friday morning. DeWitte said she felt anxious, but hopeful.

"What would happen if we got the ruling the way that we wanted? What would happen if we didn't?" she said. "I was praying for a favorable decision today."

Allie Wampler and other volunteers with the Iowa Abortion Access Fund, a group that helps people pay for abortion procedures, also were watching the website. Wampler said everyone involved with the pro-abortion group felt "very tense" waiting for the decision.

"It was a very emotional and stressful morning for all of us," she said.

Activists on both sides of the divide had anticipated Friday's decision for months. But after the ruling, they stayed focused on their plans to prepare for the Roe v. Wade decision and any upcoming legislative action in Iowa.

"When we see an end to abortion in our state, that's when we'll celebrate," DeWitte said. "But until then, we have got to keep working and keep pushing until we can see all life protected in Iowa."

For Pulse Life Advocates and other members of the Coalition of Pro-Life Leaders, the focus is passing a constitutional amendment stating explicitly that the state constitution does not recognize a right to an abortion.

"Who's to say in the future this wouldn't happen again?" she said. "We would have no guarantee that future judges, on a whim, wouldn't decide that once again there was a fundamental right."

The constitutional amendment process is already underway. Iowa lawmakers approved language in 2021 that states the constitution does not "recognize, grant, or secure a right to abortion or require the public funding of abortion." That language will need to pass the Iowa House and Senate again in 2023 or 2024. Then, Iowans would vote on the amendment in a general election.

Wampler and the Iowa Abortion Access Fund, meanwhile, plan to keep fundraising for abortion grants, educating people about reproductive justice and encouraging Iowans to vote. Wampler said the organization's work will continue, even if Iowa lawmakers restrict or ban abortion in the state.

"We will continue to get people the care they need, whether it means traveling out of state, and helping with lodging and helping with procedure costs," she said. "We're not going to stop."

Majority opinion rejects Planned Parenthood’s objections to law

Planned Parenthood challenged the 24-hour waiting period on several grounds, including that the Legislature, in adding the provision to another bill in the waning hours of the 2020 legislative session, violated the state constitution’s “single-subject clause” by combining unrelated bills under one heading. The group also argued the new law ran afoul of the 2018 Supreme Court decision. The district court in 2021 found for Planned Parenthood on both counts and blocked the law.

Mansfield, however, wrote that the law did not violate the single-subject clause. The bill to which the abortion rule was added restricted when courts could order a brain-dead child to be removed from life support, and Mansfield wrote that the laws could be joined under one heading because “both provisions related to state regulation of individual medical decision-making.”

As for whether the state should have been allowed to argue for the new law despite the 2018 Supreme Court decision, Mansfield wrote that “it would be unfathomable to say that issue preclusion prevents the State from asking us to revisit a broad principle of constitutional law.”

Why did the court rule its 2018 decision was wrong?

Mansfield wrote that “stare decisis,” or respect for precedent, does not block the court from reconsidering even relatively recent decisions, saying “we do not agree that every state supreme court decision is entitled to some minimum try-out period before it can be challenged.”

He wrote that he believed the court got it wrong in 2018, when he was on the dissenting side. Even other states that have recognized constitutional protections for abortion have done so in more limited fashions, he wrote, while he argued that Iowa’s 2018 decision went beyond even Roe v. Wade in the protection it afforded to abortion rights.

He also wrote that the 2018 decision diverged from Iowa’s historical and legal precedents and improperly waded into a divisive social and political debate.

"We agree with (the 2018 decision) that 'autonomy and dominion over one’s body go to the very heart of what it means to be free.' We also agree that 'being a parent is a life-altering obligation that falls unevenly on women in our society,’” wrote Mansfield. "Yet, we must disapprove of (the 2018 case's) legal formulation that insufficiently recognizes that future human lives are at stake.”

Split court disagrees on best path forward

While the decision strikes down the 2018 precedent, the justices were divided on what should replace it. Two justices wanted abortion to remain a constitutional right, while two others wanted to go further than the majority and remove nearly all legal impediments to abortion restrictions.

Only two justices, Dana Oxley and Thomas Waterman, joined Mansfield for the full majority opinion. Chief Justice Susan Christensen and justices Christopher McDonald and Matthew McDermott joined Mansfield’s opinion in parts. Justice Brent Appel, the sole Democratic appointee on the court, wrote a dissenting opinion, and McDermott and Christensen both filed partial dissents.

McDermott, joined by McDonald, agreed with Mansfield’s analysis of the law, but disagreed with the result. While Mansfield left it to the district court to determine the proper legal standard, McDermott wrote that the 24-hour rule and other abortion restrictions should be considered using the rational basis test, the most permissive standard courts can use in evaluating the constitutionality of a law.

Christensen sided with Mansfield on the single-subject issue. But she argued that the 2018 decision should not be overruled, as did Appel in his opinion, saying the considerable turnover the court has seen in recent years should not result in complete reversal of recent precedent.

“The fact that little has changed in the four years since (2018) is precisely why I cannot join the majority in holding (the 2018 decision) was so wrongly decided that we must already overrule it,” Christensen wrote.

What does high-profile reversal mean for the court?

Both Mansfield and the dissenters acknowledged the concern that such a quick reversal on such a high-profile question could undermine public confidence in the legitimacy of the court.

Christensen, one of the justices appointed since the 2018 decision, warned that the court was acting too quickly. Reversing a prior decision requires "special justification" beyond the belief that the prior case was wrongly decided, she wrote.

The decision also creates implementation concerns, she wrote, tasking a district court with reviewing the proper legal standard for abortion cases at the same time the U.S. Supreme Court is considering reversing Roe and the Legislature is working to amend the Iowa Constitution.

"Current state and federal constitutional abortion jurisprudence is like a game of Jenga, progressively becoming more unstable until it collapses," she wrote. "... Flawed as the majority believes (the 2018 decision) to be, it at least untethered Iowa from the vulnerable federal standard to provide some sense of stability to Iowa’s abortion jurisprudence."

A group of University of Iowa and Drake University law professors who filed a friend-of-the-court brief before the decision urged the majority to uphold the 2018 decision out of respect for precedent, which they characterized as necessary to show justices are not simply following their own policy preferences

Disregarding precedent "leaves a supreme court free to pick and choose the precedents it likes, calling into question the court’s integrity and legitimacy, making the Court’s decisions unpredictable, and disrespecting the rule of law." the professors argued.

Mansfield in his opinion noted multiple cases in recent years in which the Supreme Court has reversed itself, sometimes even faster than in this case. He dismissed the professors' concern that the court might appear to be motivated by policy goals rather than legal principles.

"We know that the professors do not share that cynical view, so why do they ask us to act in fear of it?" he wrote. "Shouldn’t we instead follow our solemn oaths to uphold the Iowa laws and constitution? In the end, court decisions should be — and we believe are — judged by the strength of their reasoning, not by the identity of the persons who wrote or joined them."

Katie Akin is a politics reporter for the Register. Reach her at [email protected] or at 410-340-3440. Follow her on Twitter at @katie_akin.

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

This article originally appeared on Des Moines Register: Iowa Supreme Court rules on abortion law, constitutional protection