Iowa Supreme Court finds right to abortion in state Constitution

Overturns 72 hour waiting period

By Dave Andrusko

Mark Cady, Chief Justice of the Iowa Supreme Court

In a 5-2 decision the Iowa Supreme Court has rejected the state’s requirement that women wait 72 hours before having an abortion, be given the opportunity to view an ultrasound scan, and be provided with information about alternatives.

The decision handed down Friday and written by Chief Justice Mark Cady overturned the 2017 law which was signed by then governor Terry Branstad.

In so doing, the court overturned the October 2 decision of Polk County District Court Judge Jeffrey Farrell who ruled that Iowa’s three-day waiting period is constitutional.

The constitutional standard, Farrell wrote, comes from Planned Parenthood v. Casey–whether the law places an “undue burden” on a woman’s right to abortion. SF 47 does not.

“The undue burden standard has been criticized, but it fairly balances the two competing interests of a woman’s right to choose an abortion versus the public’s interest in potential life,” Judge Farrell wrote. “The evidence at trial focused on the hardships women face when dealing with an unwanted pregnancy, but the public’s interest in potential life is an interest that cannot be denied under the law. Both of these interests are important.”

But the state Supreme Court ruled otherwise. The court based its ruling, it said, on the state constitution which the five -member majority concluded affirms a right to abortion.

Justices Edward Mansfield and Thomas Waterman dissented.

Justice Mansfield dissent was particularly powerful, both for what it said about Justice Cady’s attitude and the history of abortion in Iowa. Referring to the 1992 Casey decision, Justice Mansfield wrote

Unfortunately, the majority opinion lacks this sense of balance and perspective. Forgoing accepted methods of constitutional interpretation, the opinion instead relies at times on an undertone of moral criticism toward abortion opponents. From reading the majority opinion, one would barely know that abortion—with few exceptions—was continuously illegal in Iowa from the time our constitution was adopted until the United Supreme Court overrode our law by deciding Roe v. Wade. From reading the majority opinion, one would scarcely be aware that many women in Iowa are prolife and strongly support the same law the court concludes unconstitutionally discriminates against them.

The challenge was brought by the massive Planned Parenthood of the Heartland (PPH) affiliate and, as a result, the law was placed on hold, according to Tony Leys and Stephen Gruber-Miller of the Des Moines Register.

It is significant that PPH did not challenge the part of the law that forbids almost all abortions performed on unborn children at 20 weeks (or older), a point at which medical science has shown the unborn child can experience pain.

“Often, women are in crisis when facing this decision, and it’s a decision that can impact them for the rest of their lives,” said pro-life Gov. Kim Reynolds. “I don’t think it is unreasonable to require 72 hours for someone to weigh their options and the important decision they are about to make.”

In that wonderful world where whatever Planned Parenthood affirms is accepted uncritically, Justice Cady maintained that Planned Parenthood already declines to proceed with abortions for women who are unsure of their decisions.

Without a mandatory delay in effect, the evidence showed that women who are conflicted in their decision or under duress do not receive the procedure and, instead, are given more time to consider or given resources to pursue alternatives. The imposition of a waiting period may have seemed like a sound means to accomplish the State’s purpose of promoting potential life, but as demonstrated by the evidence, the purpose is not advanced. Instead, an objective review of the evidence shows that women do not change their decision to have an abortion due to a waiting period

In his 67-page-long opinion, Justice Cady wrote, “The state has a legitimate interest in informing women about abortion, but the means used under the statute enacted does not meaningfully serve that objective. Because our constitution requires more, we reverse the decision of the district court.”

The decision was not a surprise. In 2015 the justices struck down a rule issued by the Iowa Board of Medicine requiring abortionists to be present and perform a physical examination on a pregnant woman prior to dispensing abortion pills.