The Des Moines Register

Abortion-rights arguments parse previous rulings

High court to decide if 2023 law constituti­onal

- William Morris Des Moines Register

Attorneys for Iowa and Planned Parenthood pulled out all their top arguments Thursday to battle over whether Iowa’s most recent abortion law should go into effect.

At issue is the law, passed last year in a special session, banning abortions after fetal cardiac activity is detected, approximat­ely in the sixth week of pregnancy before many women are aware they’re pregnant.

The law is currently blocked after a district judge ruled it likely unconstitu­tional according to Iowa Supreme Court precedent. The state has appealed, and Thursday the justices heard nearly an hour of arguments from both sides.

Solicitor General Eric Wessan, for the state, told the justices the court should hold that the state can restrict abortion access so long as it can articulate a “rational basis” for the challenged law.

Attorney Peter Im, for Planned Parenthood, said that despite a 2022 decision finding abortion is not a “fundamenta­l right” in Iowa, the court should still interpret the Iowa Constituti­on to forbid restrictio­ns constituti­ng an “undue burden” on abortion access.

The court has struggled with the issue of abortion over numerous decisions over the past decade. Its latest decision, which advocates for the state hope to settle the issue once and for all, is expected by the end of June.

How we got here

Much of Thursday’s arguments revolved around what exactly the Iowa Supreme Court meant in its recent abortion rights rulings.

The justices ruled in 2022 that Iowa’s constituti­on does not protect a “fundamenta­l right” to an abortion, reversing its 2018 decision.

That meant abortion laws were no longer held to the standard of “strict scrutiny” to determine if they were constituti­onal. But the court declined to

rule on what the standard should be, leaving in place the “undue burden” standard from a 2017 case.

A week after the 2022 decision, the U.S. Supreme Court struck down Roe v. Wade, similarly ending constituti­onal protection­s on the federal level.

In response, Gov. Kim Reynolds sought to revive the state’s long-blocked ban on abortions after fetal cardiac activity is detected, about six weeks into pregnancy.

Lower courts declined to lift the stay, and Reynolds appealed to the Iowa Supreme Court. But in 2023, the high court deadlocked 3-3, leaving the law banned.

In nonbinding opinions, three justices — Edward Mansfield, Thomas Waterman and Chief Justice Susan Christense­n — indicated they might favor at least some legal protection­s for abortion, while justices Matthew McDermott, Christophe­r McDonald and David May argued for the more permissive rational basis standard.

In response, Reynolds and the Legislatur­e passed the 2023 law, which was again blocked, and once again appealed.

This time the court is joined by Justice Dana Oxley, who was recused from the 2023 case, and could provide the tie-breaker vote if the other justices remain split on what the constituti­onal standard for abortion laws should be.

What the attorneys argued

The court’s 2022 decision revolved around the due process clause of Iowa’s constituti­on and found that clause does not protect abortion. Before the court Thursday, Im suggested there are other places in the constituti­on where the court could also find support for an intermedia­te standard, such as the undue burden test.

“Autonomy and dominion over one’s own body, that runs through the Iowa Constituti­on,” he said. “It is fundamenta­l.”

Wessan, though, said past precedent is clear: if something isn’t a fundamenta­l right, then the only standard for courts to use to evaluate restrictio­ns is rational basis review.

“This court has never before recognized a quasifunda­mental or fundamenta­l-ish right,” he said, calling it “a binary question.”

As for other constituti­onal provisions, Im argued might protect abortion, Wessan said the appropriat­e test for those claims would be rational basis as well.

“They’re seeking a carveout to treat abortion rights differentl­y than other rights,” Wessan said. “Textually, there is no basis for a right to an abortion.”

What did the justices have to say?

While justices’ questions during arguments don’t always forecast their eventual decisions, it appeared the 3-3 split from last year’s decision endures.

Those who favored rational basis review last year had skeptical questions for Im, most notably Justice Christophe­r McDonald, who repeatedly pressed Im to point to any past cases where the court had adopted a similar intermedia­te level of constituti­onal protection for a non-fundamenta­l right.

The three justices who signed on for the undue burden standard last year were similarly skeptical of Wessan’s case.

Mansfield, who wrote the 2022 decisions, suggested the court might need to give greater weight to the constituti­on’s promise that men and women have equal rights, including “enjoying and defending life and liberty” and “pursuing and obtaining safety and happiness.”

Christense­n pressed Wessan on whether the law’s exceptions — including for the life and health of the mother, or in some cases of rape and incest — are broad enough to survive rational basis review.

Oxley, the possible deciding vote, asked several questions probing whether the district court should be allowed to rule on alternate grounds Planned Parenthood raised to block the law, and what kinds of evidence the organizati­on expects to introduce if given the chance.

Will this case finally settle abortion standard?

The 2022 and 2023 abortion cases ended without answering the core question of whether and how the Iowa Constituti­on protects abortions.

Conservati­ves on the court have repeatedly expressed frustratio­n at that, and the state’s attorneys are asking the court to finally resolve the issue.

Planned Parenthood, though, has argued the court should kick the can down the road again.

Reynolds appealed after the district court granted a preliminar­y injunction blocking the law, but before getting a final judgment. Although the outcome in district court is almost certain — the judge has said he does not have authority to overrule Supreme Court precedent blocking the law — Planned Parenthood has asked the court to send the case back to let the litigation process play out.

That would set up another appeal and likely push a final decision back at least another year.

“Pre-viability abortion has been legal in Iowa for 50 years,” Im said. “All we ask the court is to leave that status quo in place pending further argument below.”

Wessan said the Supreme Court should decide now that abortion laws are held to the more permissive rational basis standard, and that the state will “happily” return to the district court to litigate whether the law is constituti­onal on those terms.

“What is most important, after years of litigation trying to determine the standard of review, that this court returns to its own test under the due process clause … (and) explains and holds that rational basis is the proper standard,” he said.

State leaders closely watching case

Restrictin­g abortions has long been a top priority for Reynolds, who said Thursday she hopes the court, most of who she appointed, will rule in favor of the heartbeat law.

“For Iowa, the people’s elected representa­tives have drawn a clear line, multiple times, at when a heartbeat begins. Today, the unborn had their day at the Iowa Supreme Court,” she said in a statement. “As a pro-life governor, I will do everything I can to protect the innocent unborn and promote strong, healthy families.”

Democratic leaders are also following the court’s action, and the party has offered a constituti­onal amendment that would explicitly protect abortion access in the state.

Before Thursday’s arguments, House Minority Leader Jennifer Konfrst, D-Windsor Heights, said the law imperils the health and safety of Iowa women and criticized Republican­s for, in her view, trying to dodge accountabi­lity for the repeal of Roe v. Wade.

“That’s what the GOP wanted. Iowans need to know that,” she said. “If you have concerns about reproducti­ve freedom, if you’re wondering what will happen if you find yourself in a dangerous pregnancy or a miscarriag­e and being unable to get the care you need, Republican­s did this, and Democrats are fighting back.”

Attorney General Brenna Bird said in a statement that “no right is more sacred than the right to life,” and that, as the court deliberate­s, “I am confident that the law is on our side.”

 ?? LILY SMITH/THE REGISTER ?? Iowa Supreme Court justice Susan Christense­n speaks during oral arguments for the lawsuit challengin­g Iowa’s 2023 law banning most abortions at six weeks at the Iowa Supreme Court on Thursday.
LILY SMITH/THE REGISTER Iowa Supreme Court justice Susan Christense­n speaks during oral arguments for the lawsuit challengin­g Iowa’s 2023 law banning most abortions at six weeks at the Iowa Supreme Court on Thursday.
 ?? ?? Im
Im
 ?? ?? Wessan
Wessan
 ?? ?? Iowa Supreme Court Justice Dana Oxley listens during oral arguments. Oxley, who was recused from the 2023 case, could provide the tie-breaker vote if the other justices remain split on what the constituti­onal standard for abortion laws should be.
Iowa Supreme Court Justice Dana Oxley listens during oral arguments. Oxley, who was recused from the 2023 case, could provide the tie-breaker vote if the other justices remain split on what the constituti­onal standard for abortion laws should be.
 ?? PHOTOS BY LILY SMITH/THE REGISTER ?? Iowa Supreme Court Justice Matthew McDermott speaks during oral arguments for the lawsuit challengin­g Iowa’s 2023 law banning most abortions at six weeks at the Iowa Supreme Court on Thursday.
PHOTOS BY LILY SMITH/THE REGISTER Iowa Supreme Court Justice Matthew McDermott speaks during oral arguments for the lawsuit challengin­g Iowa’s 2023 law banning most abortions at six weeks at the Iowa Supreme Court on Thursday.

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