CommentaryRecently, a District Court Judge in Iowa struck down a law passed in the spring of 2018 which would have barred abortions after a fetal heartbeat could be detected by means of a vaginal ultrasound. The exceptions included cases of medical emergency, or medically necessity, severe fetal defects, or when the fetus was conceived through rape or incest. A fetal heartbeat can be detected as early as the sixth week of pregnancy. Heartbeats are easily detectable by the twelfth week of pregnancy.
This ruling was no surprise. All sides expected it. To understand why, it is useful to look at recent legislation and court rulings regarding abortion in Iowa. When the Republicans took over the legislature after the 2016 elections, one of the items on the party’s agenda was to restrict abortions. In the 2017 legislative session, a law was passed that banned abortions after twenty weeks and required a seventy-two (72) hour waiting period from when a woman gives “informed consent” and has an ultrasound to determine the age of the fetus to when she can have the abortion.
Planned Parenthood of the Heartland immediately sued to prevent the law from going into effect. The law was enjoined before trial at the District Court. A different Judge heard the trial and found that the law was constitutional. He ruled against Planned Parenthood’s case. The Iowa Supreme Court stayed the statute while it considered the appeal. At the end of June 2018, the Iowa Supreme Court by a vote of 5-2 found a state constitutional right to abortion. The Court ruled that women had a fundamental right to choose to have abortions under substantive due process and equal protection. It rejected the US Supreme Court’s use of the “undue burden” test as an analysis to use to determine the constitutionality of an abortion restriction.
The Court’s analysis included a detailed description of the huge burden the 72 hour waiting period placed on women, especially lower income and rural women. These burdens included: difficulty getting to clinics, obtaining ultrasounds, making two appointments 72 hours apart before the 20 week deadline. For rural women, access to transportation to an abortion clinic that might be hours away could also be quite difficult. Making the trip twice, might be impossible for some women. The Court noted that the longer it took to get the abortion, the more medical risk there is to having an abortion. An abortion by medication is only available in the first ten weeks of pregnancy. A second trimester abortion is more expensive and has more risks than a first trimester abortion.
In finding that the substantive due process clause of the Iowa Constitution includes a right for a woman to choose to have an abortion, the Court stated:
Autonomy and dominion over one’s body go to the very heart of what it means to be free. 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. We therefore hold, under the Iowa Constitution, that implicit in the concept of ordered liberty is the ability to decide whether to continue or terminate a pregnancy.
The Court then applied strict scrutiny to the 72 hour waiting period and found the statute unconstitutional. That was not the end, however. Rather, the Court went on to look at abortion rights under equal protection. Iowa has a history of making its equal protection clause robust and the Court used that tradition in this case. In recognizing that equality included women’s autonomy over their reproduction, the Court discussed the consequences of unwanted pregnancies:
Laws that diminish women’s control over their reproductive futures can have profound consequences for women. Some women embrace them and never look back. Others, however, do look back and see a trajectory in life different from men. Without the opportunity to control their reproductive lives, women may need to place their educations on hold, pause or abandon their careers, and never fully assume a position in society equal to men, who face no such similar constraints for comparable sexual activity. Societal advancements in occupational opportunities are meaningless if women cannot access them. Policies that make education more affordable are meaningless if women are kept out of reach. Equality and liberty in this instance, as in so many others, are irretrievably connected.
The seventy-two hour waiting period was rejected. This ruling was issued June 29, 2018, after the legislature passed the fetal heartbeat measure. While the legislature was debating the fetal heartbeat bill, members who supported it explicitly said that they hoped the bill would be a vehicle for the United States Supreme Court to overturn Roe v. Wade and Planned Parenthood v. Casey. They made it clear that they understood that the only way the statute could be upheld would be for the Supreme Court to do that.
The American Civil Liberties Union of Iowa threw a wrench in this plan. When it sued the state for an injunction representing Planned Parenthood, it filed its suit only under the state constitution. The state Attorney General refused to represent the state in the lawsuit because the statute was so clearly unconstitutional. The state received free representation from a national organization opposed to abortion rights. There was an attempt to remove the case to federal court which was rejected since no federal question was raised. The judge enjoined the statute while the case was pending.
With that, the suit continued in state court. Once the Iowa Supreme Court’s opinion in the 72 hour case was issued, it became even clearer that the statute was unconstitutional. Planned Parenthood sought summary judgment. The state opposed trying to argue that there were material issues of fact in dispute. Primarily, they argued that a fetal heartbeat is not always detected at six weeks into the pregnancy. They said it could take as long as 12 weeks for a fetus to develop a heartbeat that can be recognized with an abdominal ultrasound. The Judge found this distinction irrelevant because the only distinction that is important to the constitutionality of abortion regulation is viability. No fetus is viable at twelve weeks. Applying Planned Parenthood v. Reynolds, the Judge easily found the statute unconstitutional. Those who pushed for the law professed shock at the ruling even though they knew that the law was unconstitutional under Roe and Casey.
This has not been the end of the story. Legislatures are now going two paths in their attempt to end women’s rights to reproductive freedom. First, they are introducing an amendment to the state constitution which would include language that there is no right to abortion under the state constitution. This is a long run effort. For an amendment to be enacted, it must be approved by two different legislative sessions (in other words another session held after the next set of state elections in 2020) and be approved by popular vote.
For a quicker solution, the legislature is considering an attack on the judiciary itself. Iowa currently has a merit selection system for judges in its constitution. As currently formulated, a commission made up one half by lawyers elected by the bar and the other half appointed by the Governor nominated two candidate for district court positions and three for appellate court positions. The Governor must choose between those nominated to fill positions.
Since getting rid of merit selection completely would take the same work as an amendment to say no right to abortion, the legislature is trying an end run around an amendment. Some are proposing to eliminate lawyers electing people to the nominating commission and have all members of the commission be political appointees. Their hope is that they will then be able to install more conservative anti-abortion judges to the Court. Since Republicans are in the majority in the State Assembly and State Senate and Iowa has a Republican governor, many fear that these efforts will be successful. If so, not only will abortion rights be endangered, but also the high quality of Iowa’s judiciary could be in jeopardy.
Sally Frank is a professor of law at Drake University.
Suggested citation: Sally Frank, Attempts to Restrict Abortion in Iowa, JURIST – Academic Commentary, Feb. 13, 2019, http://jurist.org/forum/2019/02/frank-attempts-to-restrict-abortion-in-iowa/
This article was prepared for publication by Brianna Bell, a JURIST Staff Editor. Please direct any questions or comments to her at commentary@jurist.org
