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Iowa Supreme Court to hear arguments April 11 on constitutionality of Iowa’s fetal cardiac activity abortion statute

by Rox Laird | April 10, 2024

The Iowa Supreme Court will hear its final oral argument of the 2023-24 term Thursday. The Court saved the term’s most-watched case for last: an appeal addressing whether Iowa’s law banning abortion after about six weeks of pregnancy may be enforced.

The oral argument in Planned Parenthood of the Heartland, et al. v. Gov. Kim Reynolds, et al. is scheduled to begin at 1:30 p.m., and the Court set aside 50 minutes to hear the case. [Go to On Brief’s “Cases in the Pipeline” page to read briefs filed with the Court by the parties in this case and by amicus curiae.]

The question before the Court is fairly straightforward: What standard should the Court apply to determine the constitutionality of a state statute that would ban abortion after fetal cardiac activity has been detected? The State urges the Court to apply rational-basis review, the least restrictive standard for assessing constitutionality of statutes. Planned Parenthood, who challenged the statute, argues the Court should keeping in place the more restrictive undue-burden standard first articulated by the U.S. Supreme Court in 1992 in Planned Parenthood v. Casey.

The answer could determine whether the abortion ban can be enforced under the Iowa Constitution.

The Court has addressed questions regarding the regulation of abortion four times since 2015.

In 2015, the Court applied the undue-burden standard in holding that a ban on delivering medication-induced abortion via telemedicine violated the Iowa Constitution.

Three years later, in 2018, the Court held that there is a fundamental right to abortion under the Iowa Constitution and that strict scrutiny, the most restrictive standard of review, should apply to abortion regulations.

That decision was reversed four years later, in 2022, when the Court considered the constitutionality of a statute that required women seeking an abortion to wait 24 hours before undergoing the procedure. But in that decision, the Court held that the undue burden remained the “governing standard.” (You can read our summary of the 2022 appeal here.)

In 2023, the court again heard a case challenging a statute enacted by the Iowa Legislature in 2018 that would have required an abortion provider to perform an abdominal ultrasound to detect whether there is cardiac activity. If cardiac activity is detected, the patient cannot have an abortion. Cardiac activity typically begins to occur at about six weeks of gestation.

In that case, the Court, which was reduced to six justices participating with Justice Oxley recused, split 3-3. Because there was no controlling majority, the district court’s order enjoining enforcement of the 2018 statute was affirmed by operation of law. As a result, the Court’s 2022 precedent applying the undue-burden standard, remained in place. (You can read our summary of the 2023 appeal here.)

In response, the Iowa Legislature in 2023 in a special one-day session enacted a new – nearly identical – version of the fetal-heartbeat abortion statute. Planned Parenthood of Iowa immediately sued in Polk County District Court, which issued a temporary injunction preventing enforcement of the law concluding that the plaintiffs were likely to prevail on the merits of their case.

The State’s appeal of that ruling brings us to the argument before the Court Thursday. An underlying question to be resolved is where the case goes from here once the justices issue a decision.

The State argues the justices should, in this case, explicitly adopt the rational-basis test in reviewing statutes that “advance the State’s legitimate interest in protecting unborn human life.” And, because the Court has established that the Iowa Constitution does not protect a fundamental right to abortion, the State argues, rational-basis review should apply.

Planned Parenthood, which urges the Court to preserve the undue-burden test, argues that is premature for the Iowa Supreme Court to reconsider the proper standard in this interlocutory appeal, noting that the case was heard on an expedited basis at the district court and the parties have not had an opportunity to develop a record.

In any case, by establishing a standard for reviewing the constitutionality of the abortion statute, the question may return to the district court for yet another round of hearings, decisions, and appeals.

 

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