UPDATES & ANALYSIS

An evenly divided Supreme Court affirms “fetal heartbeat law” injunction by operation of law, trades barbs on matters of jurisprudence and appellate procedure

by Matt McGuire | June 16, 2023

In a 3-3 decision, the Iowa Supreme Court affirmed a district court ruling refusing to dissolve a 2019 injunction against enforcement of a law known as the “fetal heartbeat law,” which would prohibit most abortions after about six weeks of pregnancy. Though the lack of a majority means that no written opinion carries the force of law, justices representing each side of the 3-3 split filed opinions explaining their rationale. Through these separate opinions, the justices employed uncommonly harsh rhetoric criticizing their colleagues.

The disputes, however, did not largely concern hot-button political issues relating to constitutional protections for abortion. Rather, the justices debated more esoteric jurisprudential questions regarding the legal status of a duly elected statute that has been declared unconstitutional, when appellate courts should review disputes under the writ of certiorari procedural device, and even the propriety of drafting separate opinions in a case where the Supreme Court has no controlling majority opinion.

This appeal concerns a 2018 statute enacted by the Iowa Legislature at Iowa Code chapter 146C, also referred to as the “fetal heartbeat law.” This statute, with some exceptions, prohibits a physician from performing an abortion when there is detectable cardiac activity within the gestational sac upon ultrasound. This statute was immediately challenged in court as violating the Iowa Constitution. Also in 2018, shortly after the “fetal heartbeat law” was enacted, the Iowa Supreme Court ruled in a different case involving a different abortion restriction—referred to as PPH II—that the Iowa Constitution protected a fundamental right to abortion, and that laws regulating abortion must pass strict scrutiny. Following the ruling in PPH II, the Iowa District Court for Polk County issued a ruling in 2019 declaring the “fetal heartbeat law” to be unconstitutional and permanently enjoining its enforcement. The State did not appeal that ruling.

In the following years, both the United States Supreme Court and the Iowa Supreme Court issued rulings that altered the state of constitutional protection for abortion. In a June 2022 ruling referred to as PPH IV (covered on this blog), the Iowa Supreme Court overruled its 2018 ruling in PPH II. A plurality of the Court held that the “undue burden” standard articulated by federal courts with respect to the federal constitution should apply to review of abortion regulations under the Iowa Constitution, at least until the Iowa Supreme Court could consider the impact of future United States Supreme Court decisions that “may provide insights that we are currently lacking.” Justices McDermott and McDonald wrote separately to state that they would have held that rational-basis review, the most deferential standard of review in constitutional law, applies to challenges to abortion regulations under the Iowa Constitution.

One week later, the United States Supreme Court issued its opinion in Dobbs v. Jackson Women’s Health Org., holding that the federal constitution does not protect a right to abortion. Under Dobbs, challenges to abortion laws under the federal constitution are now to be analyzed according to rational basis review.

Following the developments in the law in PPH IV and Dobbs, the State filed a motion to dissolve the district court’s injunction against the “fetal heartbeat law.” The State argued that consistent with the Dobbs opinion, the Iowa Supreme Court should also adopt rational basis review of abortion regulations under the Iowa Constitution. The State argued that the court possessed the inherent power to modify its injunction in light of changes to law, and that the court should exercise such power in light of PPH IV and Dobbs.

The Iowa District Court for Polk County rejected the State’s claim and found there was no basis to dissolve its 2019 injunction. The district court disagreed that the Iowa Rules of Civil Procedure or any inherent power provided it with authority to dissolve a permanent injunction where that prior proceeding had concluded in full. The district court found that upon being declared unconstitutional, the “fetal heartbeat law” was void—“as though it had never been passed.” The district court also ruled that the State could not show a substantial change in the law, as the abortion regulation in question would impose an undue burden under the test endorsed by the plurality in PPH IV.

The State appealed pursuant to a writ of certiorari—a form of discretionary review. On appeal, the State argued, first, that the district court did possess inherent authority to modify or dissolve its 2019 injunction if there had been a substantial change in the law. Second, the State argued that PPH IV and Dobbs did constitute a substantial change in the law warranting modification or dissolution of the district court’s 2019 injunction. Third, the State argued that the Iowa Supreme Court should adopt the rational basis test for review of abortion regulations consistent with Dobbs.

The Iowa Supreme Court divided evenly as to the disposition of the State’s appeal. Chief Justice Christensen and Justices Waterman and Mansfield would have affirmed the district court’s ruling, while Justices McDonald, McDermott, and May would have reversed. Justice Oxley did not participate due to a conflict. Because the Supreme Court was evenly divided, the district court’s ruling was affirmed by operation of law, with no written opinions carrying precedential value. (This is not the first time this term that the Court split evenly in a hot-button appeal, leaving no controlling majority opinion.)

Justice Waterman, writing for the three justices that would have affirmed the district court’s ruling, wrote that there were at least two separate bases for affirmance. First, he would have denied the State’s petition for a writ of certiorari. He noted that the State had no right of appeal because the district court’s injunction was entered four years ago and the State did not appeal it. This point was not disputed. Accordingly, any appellate review would be discretionary pursuant to a writ of certiorari. Justice Waterman argued that discretionary review would have been inappropriate in this case for numerous reasons, including the fact that one justice was recused and could not participate. Justice Waterman also observed that the Iowa Legislature could have avoided—and could still avoid—questions relating to inherent authority to dissolve injunctions by re-enacting the statute or approving a constitutional amendment.

Justice Waterman also would have found that the district court properly applied the undue burden test in refusing to dissolve the injunction under the law as set forth in PPH IV. Even though the Court’s opinion in PPH IV did not squarely decide the issue of the appropriate standard of review under the Iowa Constitution (and clearly left the door open for the Court to adopt rational-basis review in the future), Justice Waterman argued that the district court did not possess the authority to first find that rational basis review should apply under the Iowa Constitution, and then dissolve its prior injunction on that basis. He stated: “[The undue burden test] is the current law in Iowa, not rational basis review. In future cases involving new abortion laws, the parties are free to argue for a change in the current undue burden standard, and this court will consider it.”

Justice McDonald, joined by Justices McDermott and May, wrote separately to explain why he would have reversed the district court’s ruling. Justice McDermott also wrote a separate opinion, joined by Justices McDonald and May. Justice McDonald would have held that rational basis review applies to abortion regulations under the Iowa Constitution, that the district court possessed authority to review its 2019 injunction, and that the injunction should be dissolved. Justice McDonald argued that a duly enacted law previously held to be unconstitutional may be later found valid without further action on the part of the Iowa Legislature if the underlying interpretation of the constitution has changed in the interim. He chastised his colleagues for “fail[ing] to understand the nature of the judicial power” to the extent they disagreed. Justice McDonald argued that district courts have continuing power through time to modify or dissolve an injunction where there is a change in facts or law just as a district court possesses continuing power to enforce such permanent injunctions.

Justice McDonald also argued that a majority of the Court did not adopt the undue burden standard in PPH IV, and in the absence of an opinion from the majority of the Court, the rational basis standard applies by default where a fundamental right is not at issue. Justice McDonald pointed to PPH IV as squarely holding (supported by six justices) that the Iowa Constitution does not protect a fundamental right to abortion. Justice McDonald sharply criticized Justice Waterman’s refusal to apply Dobbs under the Iowa Constitution in light of prior opinions by Justice Waterman arguing that Iowa courts should follow federal standards unless certain “divergence criteria” are present.  Characterizing his colleagues’ opinion as the result of a “three-person super general assembly,” Justice McDonald argued his fellow justices were misstating the applicable precedent to find the “fetal heartbeat law” unconstitutional.

In response, Justice Waterman cited a recent opinion by Justice McDonald in State v. Wright, in which Justice McDonald explained that the Iowa Supreme Court must independently interpret the Iowa Constitution, even where the federal constitution uses similar language. The Wright case involved a question relating to Fourth Amendment protection from warrantless searches of trash bags placed in an alley. Justice Waterman wrote, “It would be ironic and 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 McDermott, meanwhile, wrote separately to emphasize his views on the legal status of the 2018 “fetal heartbeat law” that was declared unconstitutional. He argued that the Legislature should not be required to pass a law a second time if a statute is declared to be unconstitutional and the law changes. Justice McDermott disagreed that any facts relating to legislators’ contemporaneous understanding of the bill’s constitutionality or subsequent developments relating to the Legislature should inform the Court’s analysis. Instead, he argued, the statutory text does not vanish even if unconstitutional and unenforceable, and the Legislature always retains the option to repeal it if the Legislature does not actually wish for the law to take effect upon a change in constitutional law.

But the justices had more to say. Justice McDonald also argued that he would have granted the petition for writ of certiorari because the case presents pressing questions of constitutional law and civil procedure, which are of broad public importance. He wrote that his colleagues’ reasons for denying the writ “are not logical, legal, or legitimate, and I need not discuss them any further.”

Finally, Justice Waterman’s and Justice McDonald’s separate opinions sparred about the fact that they were issuing opinions in this case at all. Justice Waterman argued that the Court’s “longstanding practice” is to not issue separate opinions in 3-3 cases since any such opinions are advisory. “Nevertheless,” he wrote, “our three colleagues insist on writing, so we must explain our views to provide balance.” In response, Justice McDonald argued that the Court often includes opinions when equally divided, including when resolution of one issue in a multi-issue case is equally divided. He argued, further, that because the result of the Court’s ruling was that a statute would remain enjoined as unconstitutional, that the members of the Court voting in favor of that outcome had a duty to explain their decision. “[T]his court has never held a duly enacted law unconstitutional without providing written legal justification for doing so,” he wrote. “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.”

Tags: Iowa Supreme Court 2022-23