Iowa Abortion Ban Forces Court to Mull Response to Changing Laws

Reinstating Iowa’s ban on abortions after six weeks would “open the floodgates” for new lawsuits over past court orders every time constitutional interpretations change, abortion providers argued Tuesday.

Abortion opponents are asking Iowa’s Supreme Court to reinstate a 2018 ban after fetal heart activity is detected without requiring the state Legislature to first re-pass the law or allow groups such as Planned Parenthood to mount new arguments against it and delay the restriction.

The case turns on how courts should respond to evolving state and federal laws and whether that presents new opportunities for litigation. A trial court blocked enforcement of the abortion ban in 2019 under Roe v. Wade and prior state case law providing a right to abortion in Iowa. But those decisions were undermined by the US Supreme Court in Dobbs v. Jackson Women’s Health Organization as well as a 2022 Iowa Supreme Court ruling that held there was no federal or state right to terminate pregnancy.

“What we know is that the Legislature was correct, that the fetal heartbeat law is constitutional because there’s no fundamental right at stake,” said Chris Schandevel, an attorney for Iowa Gov. Kim Reynolds (R). The state has a legitimate and compelling interest “in protecting fetal life.”

Schandevel argued that the justices adopt “rational basis review"—the lowest level of scrutiny—for state abortion laws, and then compel the lower court to reinstate the state’s abortion ban under that reasoning. Providers want state lawmakers to pass the law again, or send that issue back to the lower court that imposed the original injunction so they can make a different argument that a state constitutional provision invalidates the law.

The state constitution “guarantees the right to enjoy life and liberty and to obtain and pursue safety and happiness to all men and women,” Peter Im, attorney for Planned Parenthood said. “And that incorporates the understanding of women’s rights in 1998" while the fundamental right to abortion was still recognized federally.

‘Floodgates’

The conservative court—which has five members appointed by Reynolds since she took office in 2017—held there was no state constitutional right to abortion in a 2022 ruling.

But instead of broaching that topic Tuesday, the justices peppered the attorneys with questions about the best way for courts to deal with settled matters of law that suddenly become unsettled or reversed as state and federal constitutional law evolves.

Justice Christopher McDonald asked both Schandevel and Im whether the court could impose a new review standard for state abortion law with this appeal. That’s an issue the court punted on in its 2022 decision last year days before the US Supreme Court issued its Dobbs ruling, leaving that issue for Iowa litigants to spar over in lower courts.

Schandevel said the justices could ease court scrutiny and tell the lower court to apply the lighter standard that would uphold the abortion restriction. Im said that would be an impermissible legal “two-step” because that issue hasn’t been argued in the lower court.

Justices Thomas Waterman and Matthew McDermott probed implications of allowing appeals of lower court injunctions. McDermott said prior court precedent allows it, but Waterman seemed hesitant to give more parties an opportunity to dust off their old lawsuits.

“Otherwise, people could go in and try and dissolve injunctions all the time and take appeals up to our court and we’d be hearing cases all the time,” he said.

Im said “that’s exactly right. If this court were to allow the state to proceed on these merits that would open the floodgates of litigation to any litigation that is bound by an injunction.”

But this is something the court already allows, McDonald said, even in cases where the law hasn’t changed but the facts have.

Back in 2018 when the ban was enacted, it was undisputed that Roe made the state’s law invalid. Justice Edward M. Mansfield asked Schandevel whether the court should invalidate the ban because legislators might not have approved of the law if they knew it would go into effect.

“It’s not the role of the courts to be deciding what the Legislature might have done previously or what the Legislature might do in the future,” Schandevel said. “When we’re dealing with a rational basis analysis, the only question is, ‘Did the Legislature have a conceivable basis for the law when they passed it?’”

The case is Planned Parenthood of the Heartland, Inc. v. Reynolds, Iowa, No. 22–2036, oral argument 4/11/23.