By Dave Andrusko
With Iowa Supreme Court Justice Dana Oxley recused from the case, the possibility of a tie vote on Iowa’s 2018 Heartbeat law always loomed. Sure enough, this morning’s 3-3 vote “means that district judge’s order is affirmed, meaning the law will remain permanently blocked,” William Morris, Katie Akin, and Stephen Gruber-Miller wrote for the Des Moines Register.
When Judge Celene Gogerty declined to reinstate the law, it left in place the 2019 injunction issued by Judge Michael Huppert. Last summer the Iowa Supreme Court reversed its 2018 ruling that there is a fundamental right to abortion under the Iowa Constitution. They did so one week before the United States Supreme Court, in Dobbs, overturned Roe v. Wade.
“With the door opened to reviving the ‘fetal heartbeat’ law, lawyers for Governor Reynolds filed a motion asking the trial court to lift the injunction, arguing that it has the authority to modify or vacate an injunction if there has been a substantial change in the facts or law,” according to Rox Laird of Courthouse News. In her seventeen page decision, Judge Gogerty, in essence, argued her hands were tied—that she does not have the authority to dissolve the permanent injunction placed on the law by Judge Huppert and allow the law to take effect.
Reynolds promptly appealed that decision, sending the case to the Iowa Supreme Court where the justices heard the case for and against allowing the fetal heartbeat to go into effect.
But “The court’s 3-3 deadlock on Friday,” the Register reported, “means the district court’s order is the final say on the matter, and the law will remain permanently blocked.” The tie vote means abortion in the first 20 weeks of a pregnancy remains legal in Iowa.
Gov. Reynold blasted the decision in no uncertain terms:
“To say that today’s lack of action by the Iowa Supreme Court is a disappointment is an understatement. Not only does it disregard Iowa voters who elected representatives willing to stand up for the rights of unborn children, but it has sided with a single judge in a single county who struck down Iowa’s legislation based on principles that now have been flat-out rejected by the U.S. Supreme Court. There is no fundamental right to abortion and any law restricting it should be reviewed on a rational basis standard – a fact acknowledged today by three of the justices. Still, without an affirmative decision, there is no justice for the unborn.”
Gov. Reynolds added,
“But the fight is not over. There is no right more sacred than life, and nothing more worthy of our strongest defense than the innocent unborn. We are reviewing our options in preparation for continuing the fight.”
In a statement, Speaker of the House Pat Grassley said
“I’m extremely disappointed in the Supreme Court’s opinion today. We feel strongly that the Heartbeat Bill is a good piece of legislation that would save the innocent lives of unborn children. Going forward we will work together to pass legislation that will protect life, support new mothers, and promote strong families in Iowa.”
In a blistering dissent, Justice McDermott observed
My three colleagues who decline to grant the State’s writ of certiorari begin their opinion with the declaration, “This case is extraordinary,” and then proceed to explain why this case is so unextraordinary that we shouldn’t bother to exercise our discretion to decide it. Refusing to exercise our discretion to take on this case—more pointedly stated, ducking it—is, in my view, wrong. I join in full Justice McDonald’s opinion today, which spells out why we should grant the State’s writ of certiorari and apply the rational basis test. …
Last year, we were presented with an appeal challenging the constitutionality of a different statute regulating abortion, yet we failed to declare the constitutional standard that applied. This case again presented that same basic task. And for the second time in as many years, we’ve ducked it. It isn’t for us to dictate abortion policy in the state, but simply to interpret and apply the law as best we can in cases that come before us. We fail the parties, the public, and the rule of law in our refusal today to apply the law and decide this case.