UPDATES & ANALYSIS

Can the US Supreme Court hear the telemed-abortion case? [UPDATE: No!]

by Ryan Koopmans | June 19, 2015

By Ryan Koopmans

UPDATE:  I was wrong! In a footnote in their appeal brief, Planned Parenthood dropped its US Constitution claim and stated that it was now, on appeal, “rely[ing] solely on the Iowa Constitution.”  The Iowa Supreme Court’s decision does not mention the withdrawal of the federal claim, and thus I assumed that the case had proceeded as it did in the district court–under both the Iowa and US Constitutions.  But upon rereading the Court’s decision, there is no mention of a federal claim (as opposed to the federal standards).

That changes everything.  The Iowa Supreme Court did conclude that the telemed-abortion ban violates the US Constitution  (and thus violates the Iowa Constitution), but since there is no federal claim, the US Supreme Court would not have jurisdiction to hear the case.  And that may have been the point of dismissing the federal claim. 

So what’s said below about cases that involve federal and state constitutional claims is correct, but it doesn’t apply to this case.  

__________________________________________________________

The Iowa Supreme Court ruled today that the Iowa Board of Medicine’s ban on so-called telemed-abortion violates the United States and Iowa Constitutions.  According to this Des Moines Register article by Tony Leys, there are “conflicting theories” over over whether the State can appeal that ruling to the United States Supreme Court.  It can, but the reason is complicated. 

The conflict comes up because the US Supreme Court has jurisdiction over federal questions (Does the law violate the US Constitution?), but not state questions (Does the law violate the Iowa Constitution?), and the Iowa Supreme Court’s decision includes both. That is, the Court ruled that the Board of Medicine’s rules violate the US Constitution and the Iowa Constitution.  In cases where the the state issue is an “adequate and independent” basis for the state supreme court’s decision, the US Supreme Court can’t take the case.  And why would it?  The outcome  won’t change; even if the US Supreme Court says that the state supreme court got it wrong–that there was no violation of the US Constitution–the state constitutional ruling would remain the same.

In this case, though, the state ruling (that the telemed-abortion ban violated the Iowa Constitution) was completely dependent on the federal ruling.  Planned Parenthood asked the Iowa Supreme Court to rule that the right to an abortion is broader under the Iowa Constitution than it is under the US Constitution.  The Court declined to decide that issue–saving it for another day–and thus assumed that the Iowa Constitution and the US Constitution are exactly the same on the subject. As a result, the justices only analyzed the telemed-abortion ban under the federal “undue burden” standard “as defined by the United States Supreme Court in its federal constitutional precedents.”  In other words, the only reason that the telemed-abortion ban violates the Iowa Constitution is because the Iowa Supreme Court believes that it violates the US Constitution.  If it doesn’t–if the Iowa Supreme Court is wrong–then the Iowa Supreme Court would have to face the question whether the Iowa Constitution and the US Constitution differ on the subject.

For that reason, the US Supreme Court can take the case.  (Of course, it doesn’t have to, and the chance of getting the Supreme Court to take any case is slim.)

Iowa has been here before.   In 2002, the Iowa Supreme Court ruled in Fitzgerald v. Racing Association of Central Iowa that Iowa’s differing tax treatment of racetracks and riverboat casinos violated the equal protection clause of the US Constitution and the Iowa Constitution.  The State asked the US Supreme Court to take the case–and it did. 

Once it got there, the casinos argued that Supreme Court didn’t have jurisdiction, because the Iowa Supreme Court decided the case under both the state and federal constitution.  The US Supreme Court didn’t buy it: because the Iowa Supreme Court treated the state constitutional claim as dependent upon the federal constitutional claim, the justices ruled that there was no adequate and independent state ground.  So they had jurisdiction. 

The Supreme Court ultimately reversed the Iowa Supreme Court, unanimously holding that Iowa’s tax scheme did not violate the US Constitution. 

But that wasn’t the end of the matter.  The Iowa Supreme Court reconsidered the issue under the Iowa Constitution and decided, after all, that it wasn’t going to follow the US Supreme Court.  

This case is no different than Fitzgerald.  The US Supreme Court could take the case; it could reverse the Iowa Supreme Court; and the Iowa Supreme Court could decide that the Iowa Constitution is indeed more broad on the subject of abortion.  

Or the Supreme Court won’t take the case at all. But it certainly can.  And it has before.

Tags: Iowa Supreme Court