Abortion Ban Vote Teed Up in Iowa After Split Court Ruling

Legislation to ban abortion in Iowa after six weeks will once again go before the state Legislature Tuesday, after a split decision by the state’s highest court blocked an earlier law from taking effect.

Iowa Gov. Kim Reynolds (R) called back the General Assembly for a special session “with the sole purpose of enacting legislation that addresses abortion and protects unborn lives.”

If passed and upheld by the courts, Iowa would become the second state after Georgia with a six-week ban. However, five other statehouses passed similar six-week bans that are either permanently or temporarily enjoined by court orders, according to the Guttmacher Institute. Thirteen states have banned abortion completely since the US Supreme Court overturned Roe vs. Wade more than a year ago.

Reynolds’ proclamation July 5 follows the state’s Supreme Court ruling June 16 that preserved abortion access by upholding a lower court’s block on the state’s six-week abortion ban. The governor signed a law in 2018 to ban abortion after six weeks, but the Iowa Supreme Court ruled it couldn’t override the lower court’s decision to block the ban. One justice recused herself, leading to an even split in the supreme court decision.

Driven by Procedural Issues

Todd Pettys, a law professor at the University of Iowa who’s has written a book on the Iowa state constitution, said procedural issues drove much of the split decision. The state didn’t appeal the district court decision that the 2018 law is unconstitutional, raising questions by several justices about whether they should even reopen the case, he said.

“When they split 3-3 a couple of weeks ago, they didn’t split because they firmly clearly disagreed about what the constitutional standard should be,” Pettys said. “Once we get rid of those procedural complexities, and we have a duly enacted law—whatever statute gets enacted here in 2023—those procedural obstacles won’t be in the way. And that would not be a basis for ruling against the state.”

The justices now can take a clean look at the law and decide whether it’s constitutional or not, if the same law makes its way through the assembly and the courts, Pettys said.

Mary Ziegler, a law professor at the University of California Davis who’s written six books on abortion law and history, said a second round of legislation and litigation would allow the split court to decide whether the six-week ban fails the undue burden test—or whether state law mirrors federal law, so there’s no state right to abortion.

“There’s obviously a clash that’s being set up,” Ziegler said. “The idea obviously is to test what the state Supreme Court is going to do because the outcome before was unclear.”

The three justices who thought the law shouldn’t go into effect weren’t “crystal clear that they were saying the undue burden test should apply, although it was implicit,” she said. The 1992 US Supreme Court decision in Planned Parenthood v. Casey found abortion restrictions are unconstitutional if they place an undue burden on a woman seeking an abortion before a fetus can survive outside the uterus.

The other three justices essentially thought there’s no daylight between Iowa and federal constitutional law, Ziegler said.

“If Dobbs said, there’s no federal abortion right, then Iowa state constitutional law says there’s no state constitutional abortion right. And because the other judge didn’t take part in the decision, there was no conclusive outcome,” she said.

A poll published in March by the Des Moines Register found 61% of adults in Iowa said abortion should be legal in all or most cases.

‘Am I Going to Be Breaking The Law?’

Emily Boevers, an obstetrician-gynecologist in Waverly, Iowa, said her small, rural hospital already faces challenges when a patient is hemorrhaging because of early pregnancy bleeding. They need to do an ultrasound quickly to see if how far along the patient is or whether the fetus has a heartbeat, which can create staffing challenges. But if this law passes, she said she’ll have to question, “Am I going to be breaking the law by taking care of this patient?”

“When somebody is hemorrhaging, every minute matters. How am I going to have to verify that somebody’s life is at stake? What are the guidelines for that?” Boevers said. “It’s just so poorly thought out. Women are going to die because of this legislation, if they pass this.”

As an OB-GYN practicing in a rural area, Boevers said she occasionally sees people who are uncertain if they want to continue their pregnancies. About half of all pregnancies are unplanned, she added.

“There are a lot of people who are going to be affected by this restrictive legislation if it passed, and if the our Iowa Supreme Court allows it to continue.”

The American Council of Obstetricians and Gynecologists filed an amicus brief opposing the 2018 law.

Mark Stringer, executive director of the American Civil Liberties Union of Iowa, which sued the state with Planned Parenthood, said he was “deeply disappointed” in Reynolds’ decision to hold a special session.

“As we have seen in other states, extreme abortion bans like these endanger women’s health and lives when exceptions are drafted too narrowly, and put physicians’ medical licenses in jeopardy for following their best medical judgment to preserve the health and lives of their patient,” Stringer said.

But Reynolds said in a statement that the “lack of action” by the Iowa Supreme Court “disregards the will of Iowa voters and lawmakers who will not rest until the unborn are protected by law.”

“I proudly signed into law legislation that protected unborn babies from abortion once a heartbeat was detectable,” Reynolds said in a statement. “I believe the pro-life movement is the most important human rights cause of our time.”