The Iowa Supreme Court’s June 17 ruling overturning its 2018 decision that recognized a fundamental right to abortion under the Iowa Constitution did more than overturn that four-year-old precedent.
The Court, in four separate opinions spread over 182 pages, decided questions including whether a woman’s right to choose to have an abortion should be considered a fundamental right under the Iowa Constitution, the Iowa Constitution’s “single subject” rule for legislation, and application of issue preclusion to constitutional challenges to legislation.
Five justices of the seven-member Court signed on to the central holding – that the Court’s 2018 decision in Planned Parenthood v. Reynolds was wrongly decided and must be overturned. Justice Edward Mansfield wrote the opinion of the Court and was joined in that holding by Justices Thomas Waterman, Christopher McDonald, Matthew McDermott and Dana Oxley.
Chief Justice Susan Christensen wrote an opinion concurring in part and dissenting in part, arguing that under the principle of stare decisis – in which appellate courts generally adhere to precedent – the 2018 ruling should not be overturned. Justice Brent Appel joined Christensen’s dissent in part, and wrote a lengthy dissent for himself in which he said he would affirm the Court’s 2018 Planned Parenthood holding “that a woman’s liberty interest in reproductive autonomy is a fundamental right under Article I, Section 9 of the Iowa Constitution.”
Friday’s ruling decided two other issues raised in this case: issue preclusion, and the single-subject rule.
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.”
At the trial-court level in this case, the Johnson County District Court held that the legislation requiring a 24-hour waiting period prior to receiving an abortion 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.
Six members of the Supreme Court, with the exception of Justice Appel, joined Justice Mansfield’s opinion rejecting that argument. The Court held that the concept of a “subject” under this rule is sufficiently broad that two regulations related to medical procedures qualify as a single subject. The Court also found that the purpose of this provision of the Constitution—preventing “logrolling” wherein non-germane provisions are added to proposed bills at the last minute—was not applicable to this instance where the members of the Iowa Legislature were aware of, and understood the meaning of, the proposed legislation.
The trial court also held that the waiting-period provision was unconstitutional in light of the 2018 Planned Parenthood decision, and that the doctrine of issue preclusion foreclosed the State’s arguments that the new waiting-period statute was constitutional. The district court found that the State was barred under issue preclusion from “relitigating that case” because the two cases involved “identical issues.”
Six members of the Supreme Court disagreed, holding that there were differences between the 72-hour and 24-hour waiting periods sufficient to defeat application of issue preclusion, particularly for a claim implicating a “broad question of constitutional law such as the right to an abortion.”
Finally, there remains the question of what standard of review should be applied by the trial court when the case is remanded for further proceedings. The Court’s 2018 decision held that strict scrutiny—the most stringent form of review under constitutional law—should apply to regulations affecting the fundamental right to obtain an abortion of a pregnancy that has not reached viability. The question that remained was what standard should replace it.
On that question, the court was splintered: Justices Mansfield, Waterman, and Oxley agreed that at least until the U.S. Supreme Court rules otherwise, the “undue burden” test adopted in the U.S. Supreme Court’s 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey “remains the governing standard.” Justice McDermott, joined by Justice McDonald, dissented on that question, saying the Court 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.”
Friday’s decision is the product of a Court that has changed much in the four years since Planned Parenthood v. Reynolds was decided.
That 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 by Chief Justice Christensen and Justices McDonald, McDermott, and Oxley. About one month after Friday’s decision was released, Justice Appel will officially retire and his replacement will be named this summer.