Sharply divided court maintains ban on Iowa’s fetal-heartbeat law

by Clark Kauffman, Iowa Capital Dispatch
June 16, 2023

A sharply divided Iowa Supreme Court on Friday let stand an injunction blocking the enforcement of a law that attempted to ban abortions after six weeks of pregnancy.

With the court divided 3-3 on the question of whether the injunction should stand, a lower court’s decision to keep the ban in place was automatically affirmed. The action marks a major victory — for now, at least — for Planned Parenthood of the Heartland and other pro-choice forces. Gov. Kim Reynolds and Republican legislative leaders said Friday they were reviewing their options for restricting abortion.

Writing for the three justices who sided with Planned Parenthood in the case, Justice Thomas D. Waterman wrote that it would be “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.”

Justice Christopher McDonald sharply criticized the three members of the court who sided with Planned Parenthood in the case, accusing them of a “results-oriented approach to deciding cases” and acting as “a three-person super general assembly” in order to hold the fetal-heartbeat law unconstitutional.

Referring to the justices with whom he disagreed, McDonald pointedly quoted former U.S. Supreme Court Justice Robert H. Jackson in saying that the rule of law was “in unsafe hands when courts cease to function as courts and become organs for control of policy.”

Chief Justice Susan Christensen and Justice Edward M. Mansfield were aligned with Waterman in the case, while three other justices — McDonald, Matthew McDermott and David May – were opposed. The court’s seventh justice, Dana Oxley, had a conflict and recused herself due to her former law firm representing a litigant in the original case.

The case centers on the state’s efforts to revive the so-called “fetal-heartbeat law” that was passed by the Iowa Legislature in 2018 and then blocked by the courts in 2019 — all before the U.S. Supreme Court ruled in 2022 that the U.S. Constitution did not guarantee a right to abortion.

Justices accuse each other of legislating from the bench

Waterman noted that filing written opinions in a 3–3 decision ran counter to the court’s long-standing practice of typically issuing no opinions when the justices are evenly divided on the outcome. In reference to the justices who supported the state’s position in the case, Waterman wrote that “our three colleagues insist on writing, so we must explain our views to provide balance.”

Waterman argued that lawyers for the state and Reynolds were asking the court “to do something that has never happened in Iowa history” by bypassing the Legislature and changing the law and dissolving an injunction to put in place a law that was declared unconstitutional years earlier.

“In our view, it is legislating from the bench to take a statute that was moribund when it was enacted and has been enjoined for four years and then to put it into effect,” Waterman wrote.

Waterman wrote that the case itself was “extraordinary” and that “nothing like this case has come up in Iowa’s legal history before or is likely to come up again.” The case, he wrote, “involves the polarizing issue of abortion, and specifically an unprecedented effort to judicially revive a statute that was declared unconstitutional in a never-appealed final judgment four years ago.”

The statute sought to prohibit most abortions at about six weeks into a pregnancy — before, Waterman observed, many women are even aware they are pregnant – rather than 20 weeks into a pregnancy, which is the current law.

Waterman commented that the legislators who voted for the fetal-heartbeat bill in 2018 “undoubtedly expected at that time that a court would rule it unconstitutional under then-existing federal and state precedent before it could go into effect,” which a district court judge did.

The district court also imposed a permanent injunction blocking any efforts by the state to enforce the new law. Reynolds filed no appeal of that decision, which would normally have marked an end to the case.

But in 2022, after the U.S. Supreme Court ruled that the U.S. Constitution does not confer a right to abortion, lawyers for the state filed a motion to dissolve the injunction and revive the law. The district court denied the state’s motion, prompting an appeal that made its way to the Iowa Supreme Court.

Waterman pointed out that the state had the opportunity to appeal the lower court’s decision in 2019 and declined to do so. “We undermine the finality of judgments when challenges are allowed years later,” he said.

Justices disagree on lawmakers’ intent in passing law

Waterman also commented that when the statute was enacted in 2018, “it had no chance of taking effect,” given past court decisions on the constitutionality of such measures.

“To put it politely, the legislature was enacting a hypothetical law,” Waterman wrote. “Today, such a statute might take effect given the change in the constitutional law landscape. But uncertainty exists about whether a fetal-heartbeat bill would be passed today.” He observed that the Iowa Legislature did not reenact the statute this year in an effort to resolve any legal uncertainty as to whether a 2018 statute could be revived by the courts.

Waterman also noted that there is an “undue burden standard” in place for deciding such cases, as opposed to a “rational basis standard.”

While the rational basis standard requires that a law be rationally related to a “legitimate governmental interest,” the undue burden standard, as applied in this case, would balance the government’s recognized interest in protecting the life of the unborn with the health of the mother and a woman’s ability to decide whether to terminate a pregnancy.

Under the undue burden standard, Waterman noted, even the state had conceded the fetal-heartbeat statute was unconstitutional.

“The law as of today has not changed in a way that removes the ‘constitutional defect’ in the fetal-heartbeat bill,” Waterman wrote. “The undue burden test remains the governing standard under the Iowa Constitution, and the state concedes, as it must, that the fetal heartbeat bill is unconstitutional under that test. The state, therefore, has failed to establish that the district court acted illegally.”

Referencing last year’s U.S. Supreme Court ruling that the U.S. Constitution did not guarantee a woman’s right to an abortion, Waterman wrote that the Iowa Supreme Court “is the final arbiter of the meaning of the Iowa Constitution. While we give respectful consideration to the decisions of the United States Supreme Court in its interpretation of parallel provisions of the federal Constitution, we have a duty to independently interpret the Iowa Constitution.”

McDonald cites colleagues’ ‘untrue’ assertion in opinion

Writing for the three justices who sided with the state, McDonald stated that contrary to Waterman’s assertion, the fetal-heartbeat bill was not a “hypothetical” law but an “actual” law.

“The argument that our statute became invalid by reason of our prior decision, and cannot now be enforced without reenactment, is entirely without weight,” McDonald wrote. “My colleagues insist that the legislature needed to reenact the same statute ‘to resolve the legal uncertainty as to whether the 2018 statute could be revived.’ There is no ‘legal uncertainty’ under Iowa law; there is only my colleagues’ refusal to apply ‘well settled’ Iowa law … It is almost universally accepted (except by my colleagues today) that courts have inherent authority to modify or dissolve a permanent injunction based on changes in fact or law without regard to the passage of time.”

McDonald wrote that the district court erred when it concluded that the undue burden standard should be applied, adding that three of his colleagues on the court “repeat the same error.”

Noting that the three justices with whom he disagrees repeatedly state the court has adopted the undue burden standard, McDonald wrote: “That is an untrue statement, and repetition of the statement does not make it true.”

McDonald acknowledged that in 2022, the court said that “for now the undue burden test” was the standard to be used in such cases, but pointed out that the opinion was linked to the U.S. Constitution’s protection of the right to an abortion. One week later, he noted, the U.S. Supreme Court “wiped away the basis” for that opinion when it ruled the U.S. Constitution did not provide a right to an abortion.

“It’s clear the federal Constitution does not protect the right to an abortion, and that it is clear under federal law that rational basis review is the test that applies,” McDonald wrote.

McDonald also questioned his colleagues on the court who “take umbrage that they are being forced to write a legal opinion” in the case, despite the court’s 3-3 position. He wrote that there is “an important issue at stake that requires writing in this case. To the best of my knowledge, this court has never held a duly enacted law unconstitutional without providing written legal justification for doing so, and this court should not start now… My colleagues’ desire to hold this law unconstitutional without any written explanation rebuffs the very constitutional order every judicial officer swears to uphold and defend.”

Justice McDermott, concurring with McDonald but writing separately to respond more fully to points raised by the opposing justices, wrote “you won’t find an entry for ‘hypothetical law’ in any legal dictionary, probably because when a bill is passed by both houses of the legislature and signed by the governor, it is not ‘hypothetical law’; it is law.”

McDermott said he disagreed with his colleagues who claimed the fetal-heartbeat law was “all performative politics, all gesture and signaling, because the statute ‘had no chance of taking effect.’”

Referencing Waterman’s concern about “legislating from the bench,” McDermott wrote: “It requires no further ‘legislating’ by, or from, us — or the legislature — to create a fetal-heartbeat law in Iowa. Of course, it’s our colleagues who refuse to exercise discretion to decide this appeal and who thus keep in place the injunction that prevents the state from enforcing the statute.”

As for Waterman’s argument that the Iowa Legislature could resolve any uncertainty by passing the law again, McDermott commented, “If the legislature disapproves of a statute on the books, the remedy is simple: It can repeal the law. This statute has never been repealed; turn to chapter 146C in your Iowa Code books and you’ll still find it there.”

Iowa Capital Dispatch is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Iowa Capital Dispatch maintains editorial independence. Contact Editor Kathie Obradovich for questions: info@iowacapitaldispatch.com. Follow Iowa Capital Dispatch on Facebook and Twitter.