By Dave Andrusko
Editor’s note. After this story was composed but before we posted it online, there was a further development. “Gov. Kim Reynolds can proceed with an appeal on a temporary block on the state’s new, restrictive abortion law, the Iowa Supreme Court said Tuesday,” according to the Associated Press.
“Reynolds announced her intentions to appeal last week and said it was ‘just a matter of time’ before lawyers for the state filed the request, which they did Friday. The Iowa Supreme Court had to say whether the request could move forward.”
Erin Murphy writes for The Gazette, a newspaper published in Cedar Rapids, Iowa. She wrote an excellent story yesterday—”Iowa Gov. Reynolds, AG Bird lay out legal arguments for abortion restrictions”—which I will quote from freely.
At stake is Iowa’s Heartbeat Law, first passed in a slightly different form in 2018, but yet to go into effect. It would protect unborn babies from abortion after the heartbeat has been detected, typically around the sixth week. The bill includes very limited exceptions: to preserve the life of the mother and for pregnancies resulting from rape or incest.
Murphy begins with “Iowa Attorney General Brenna Bird, arguing on behalf of Reynolds, in the court filing dated Friday argues the Iowa Supreme Court should determine that a lower legal standard of review is appropriate for abortion restrictions in the wake of 2022 rulings by the Iowa and U.S. Supreme Courts.”
This is pivotal. Last year, in a different case, the Iowa Supreme Court reversed itself and concluded there is no right to abortion in Iowa under the state constitution. As it happens that decision came down a week before the U.S. Supreme Court’s Dobbs decision overturned Roe v. Wade.
But the Iowa Supreme Court took a pass on what standard Iowa courts should use to evaluate future laws on abortion. Bird argued that courts should use the same standard the Supreme Court adopted in Dobbs—the “rational basis.” But instead the Iowa Supreme Court left in place the “undue burden” standard which meant any law that imposes a substantial obstacle for a woman seeking abortion would be struck down.
And, as Judge Seidlin pointed out, “[W]hen the undue burden standard is applied, it is readily apparent that the petitioners are likely to succeed on their claim” that the new law violates the Iowa Constitution. It was Judge Seidlin who issued a temporary injunction at the behest of the plaintiffs–Planned Parenthood of the Heartland, the Emma Goldman Clinic, and the ACLU of Iowa.
Gov. Reynolds and Attorney General Bird told the Supreme Court that under the “rational basis” test, the new abortion restrictions were constitutional and Judge Seidlin’s decision to block the law should be removed.
In her court filing, according to Murphy, Bird argued “This Court should grant interlocutory review and recognize that rational basis review applies to abortion restrictions, find that the Fetal Heartbeat Statute survives rational basis review, dissolve the temporary injunction, and render for the State.”
She added, “Only this Court can harmonize Iowa law.”
Ruth Richardson, president and CEO of Planned Parenthood North Central States, said in a statement ,“This appeal is yet another dangerous attempt to force politicians into Iowans’ exam rooms. We remain committed to protecting the right of all Iowans to access abortion care and are prepared to fight the state’s appeal.”
Bird argued in her filing that going forward without first establishing the standard of review would be “litigating under uncertainty.”
“If this Court does not clarify the standard before summary judgment, the Parties, and the district court, are then bound to the inefficient path of litigating under uncertainty. They will potentially waste significant time and resources developing a factual record that is irrelevant — until the inevitable appeal after a ruling on the merits. Only after a ruling by this Court will the Parties — and the district court — know the applicable standard for reviewing regulations protecting unborn life under Iowa law.”
“Eventually, this Court will have the final answer on what standard,” Bird also argues. “It is in no Party’s interest to litigate under uncertainty while this important societal issue remains undetermined.”