UPDATES & ANALYSIS

Iowa Supreme Court should overturn 2018 ruling protecting abortion choice, State argues in appeal

by Rox Laird | February 9, 2022

The Iowa Supreme Court should overturn its 2018 ruling that the Iowa Constitution protects the fundamental right of a woman to decide whether to terminate her pregnancy, the State of Iowa argues in an appeal to the court in a case to be argued Feb. 23.

That decision, Iowa Attorney General Thomas J. Miller argues in a brief filed with the Court on behalf of the State, “relied on an interpretation of the Iowa Constitution that is demonstrably erroneous. Nothing in the text, structure, history, or tradition of the Iowa Constitution makes abortion a fundamental right.”

In short, the State argues, “It should be overruled.”

The case for eliminating state Constitutional restraints upon regulation by the Iowa Legislature comes in an appeal by the State in Planned Parenthood of Iowa v. Reynolds, which is scheduled to be argued before the Court at 9 a.m. Feb. 23. [Go to On Brief’s “Cases in the Pipeline” page to read the briefs filed in this case, including eight amicus curiae briefs filed in support of each side to the appeal.]

The State is appealing a Johnson County District Court decision permanently enjoining enforcement of a 2020 Act of the Iowa Legislature that required a physician performing an abortion to obtain informed consent from the pregnant woman at least 24 hours before performing the procedure. The District Court held the legislation violated the Iowa Constitution’s single-subject rule by incorporating the waiting-period provision with a separate provision regulating the withdrawal of life-sustaining medical procedures from a minor child over the objection of the parent or guardian.

Article III, Section 29 of the Iowa Constitution provides that “Every Act shall embrace but one subject, and matters properly connected therewith; which subject shall be expressed in the title.”

The State argues the 2020 Act did not violate the single-subject rule because the title of the Act describes the subject as “relating to medical procedures, including abortion and limitations regarding the withdrawal of a life-sustaining procedure from a minor child.” Both sections fall under the general subject of “medical procedures,” the State argues, and are, using the words of the Constitution, “matters properly connected therewith.”

The trial court said that in light of its ruling that the 2020 Act violated the single-subject rule it was not necessary to address Planned Parenthood’s claims that the waiting-period statute violated due process and equal protection under the Iowa Constitution. Yet, it nonetheless concluded that the waiting-period provision is unconstitutional under the Supreme Court’s 2018 Planned Parenthood decision, and the State was barred from “relitigating that case” because the two cases involved “identical issues.”

In its appeal, the State argues it is not precluded from defending the 24-hour-wait requirement because the 2018 Planned Parenthood decision struck down a 72-hour waiting period previously enacted by the Legislature whereas the case before the District Court was subsequent legislation changing the waiting period from 72 hours to 24. The two issues “are not identical,” the State argues.

In any case, even if the State is barred from defending the 24-hour waiting period statute in District Court, it is not barred from asking the Supreme Court to reconsider its 2018 abortion decision. And the State says the Court should do just that.

The 2018 Planned Parenthood decision was written by Chief Justice Mark Cady and joined by Justices Brent Appel, David Wiggins, Daryl Hecht, and Bruce Zager – all of whom with the exception of Justice Appel have since been replaced on the Court. Justice Edward Mansfield wrote a dissenting opinion joined by Justice Thomas Waterman – both of whom remain on the court.

The State’s argument for overturning the 2018 Planned Parenthood decision quotes extensively from Justice Mansfield’s dissent in that case.

“For the reasons explained in the dissent in Planned Parenthood, the decision relied on an interpretation of the Iowa Constitution that is demonstrably erroneous,” the State argues. “Nothing in the text, structure, history, or tradition of the Iowa Constitution makes abortion a fundamental right.”

“Indeed, shortly after the adoption of the Iowa Constitution [in 1857], the Legislature passed a law prohibiting all abortions unless necessary to save the mother’s life,” the State’s brief notes. “Abortion remained illegal in Iowa for more than one hundred years” until Roe v. Wade was decided by the U.S. Supreme Court.

Nor should the Court be dissuaded from reversing its own decision under the principle of stare decisis – in which courts adhere to precedent to bring consistency to the law – because, the State argues, 2018 Planned Parenthood decision is fewer than four years old.

Quoting from a 1986 U.S. Supreme Court decision, the State argues: “Stare decisis exists as a ‘means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion.’” The State argues that the 2018 Planned Parenthood decision “is the definition of an ‘erratic’ change in the law, untethered from the ‘principled and intelligible’ development that the doctrine of stare decisis seeks to preserve. It should be overruled.”

Appellee Planned Parenthood of the Heartland argues in response to the State that the District Court correctly held that the 2020 legislative Act violates the Iowa Constitution’s single-subject rule, that the Act violates the due process and equal protection clauses of the Iowa Constitution, and that the 2018 Planned Parenthood case was correctly decided by the Supreme Court.

Eight amicus curiae (friend of the court) briefs have been filed with the Court in this case:

• Sixty members of the Iowa Legislature in support of the appellants;
• The Kirkwood Institute and members of the 89th General Assembly of the State of Iowa in support of appellants;
• Ten Iowa State Senators, in support of appellants, urging the Court to find that the rules of procedure utilized by the General Assembly in passing legislation are nonjusticiable political questions for purposes of the single-subject rule;
• Thirty-three members of the Iowa Legislature in support of appellees;
• The Iowa Coalition Against Domestic Violence and Iowa Coalition Against Sexual Assault in support of appellees;
• University of Iowa and Drake University law professors, in support of appellees, urging the Court to follow its 2018 decision in Planned Parenthood of the Heartland v. Reynolds ex rel. State;
• League of Women Voters (Iowa Chapter), in support of appellees, arguing the Court should declare the waiting-period Act unconstitutional on the single-subject grounds; and
• The American College of Obstetricians and Gynecologists, et al., in support of appellees.

Tags: Iowa Supreme Court 2021-2022