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Iowa Supreme Court Overrules 2018 Decision That State Constitution Strongly Protects Abortion Rights


In a complicated set of opinions that span 182 pages, the Iowa Supreme Court overruled their own 2018 decision (referred to in the opinion as “PPH II“) and held by a vote of 5-2 that neither the due process nor the equal protection clause of Iowa’s constitution grants a fundamental right to an abortion. It thus rejected subjecting abortion regulation– here a new 24-hour waiting period– to strict scrutiny under the state Constitution. However the court did not decide what level of scrutiny should apply.  This left the standard to be the undue burden test imposed by federal law. In Planned Parenthood of the Heartland, Inc. v. Reynolds, (IA Sup. Ct., June 17, 2022), Justice Mansfield’s majority opinion said in part:

[Law] professors [in an amicus brief] urge that adhering to a precedent when the membership of a court changes “refutes the cynical view that a supreme court is a political institution guided by the justices’ personal values, rather than the law.” But we know that the professors do not share that cynical view, so why do they ask us to act in fear of it? Shouldn’t we instead follow our solemn oaths to uphold the Iowa laws and constitution? In the end, court decisions should be—and we believe are—judged by the strength of their reasoning, not by the identity of the persons who wrote or joined them….

Constitutions—and courts—should not be picking sides in divisive social and political debates unless some universal principle of justice stands on only one side of that debate. Abortion isn’t one of those issues….

In summary, PPH II lacks textual and historical support. It is doctrinally inconsistent with prior Iowa jurisprudence concerning family rights that followed a balancing approach. Its rhetoric is one-sided. Its constitutional footing is unsound. While it is true that some other states have provided heightened protection for abortion rights, they have done so by invoking more relevant substantive constitutional guarantees—such as the right of privacy—not a procedural clause like due process…..

While 5 Justices concurred in that conclusion, 2 of those Justices in an opinion by Justice McDermott disagreed with the instructions on remand given in Justice Mansfield’s opinion, saying in part:

I join almost all parts of the court’s opinion, including…  its overruling of … PPH II…. But I dissent from my colleagues’ remand directing the district court to apply an “undue burden” standard, subject (apparently) to the standard being “litigated further” by the parties. In my view, we should emphatically reject—not recycle—Casey’s moribund undue burden test and instead direct the district court to apply the rational basis test to the plaintiffs’ constitutional challenge.

Chief Justice Christensen filed an opinion dissenting in part, saying: 

Out of respect for stare decisis, I cannot join the majority’s decision to overrule … PPH II … because I do not believe any special justification “over and above the [majority’s] belief ‘that the precedent was wrongly decided’ ” warrants such a swift departure from the court’s 2018 decision….

Since 2018, the makeup of our court has significantly changed with the appointment of four new justices to replace outgoing justices. Coincidentally, all four outgoing justices were part of the 5–2 majority that recognized a fundamental right to decide whether to continue or terminate a pregnancy in the 2018 case.

Justice Appel, who is the only Justice on the court who was part of the majority in 2018, filed an 88-page dissent, concluding in part:

The majority has chosen to simply rule that strict scrutiny is not the applicable test of a statute regulating abortion … and has remanded the case to the district court for further consideration of other issues. The problem with this approach is twofold. First, the majority opinion grossly understates the importance of this life-changing abortion decision on women. Second, the majority opinion eliminates a strong, workable, and widely accepted barrier to governmental intrusion into the reproductive choices of a woman and invites us to stare into the standard-less abyss….

I have some thoughts to seek to salvage what can be salvaged from the decision. First, the district court must recognize the rights primacy of the Iowa Constitution and reject summarily a rational basis test, which is too often no test at all. Second, if a version of the undue burden test is to be adopted, it must be with teeth.

Des Moines Register reports on the decision. [Thanks to Scott Mange for the lead.]


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