Iowa Supreme Court rejects 72-hour abortion waiting period requirement, says women have right to abortion

Tony Leys , Stephen Gruber-Miller | The Des Moines Register

Show Caption Hide Caption Iowa Supreme Court rejects 72 hour abortion waiting period Iowa Supreme Court rejects 72 hour abortion waiting period

Iowa women have a fundamental right to abortion under the Iowa Constitution, the state Supreme Court ruled Friday.

The landmark 5-2 decision tossed out a 72-hour waiting period requirement, which legislators passed in 2017. Experts said the justices' decision could dim the chances for a 2018 "fetal heartbeat" law, which would ban most abortions after six weeks of pregnancy.

Friday's ruling came as the result of a lawsuit Planned Parenthood of the Heartland filed challenging the 72-hour waiting period. The requirement was part of a law signed by then-Gov. Terry Branstad, a Republican who is a staunch opponent of abortion. The waiting period requirement had been placed on hold during Planned Parenthood's legal challenge, which prevailed in Friday's ruling.

"We conclude the statute enacted by our legislature, while intended as a reasonable regulation, violates both the due process and equal protection clauses of the Iowa Constitution because its restrictions on women are not narrowly tailored to serve a compelling interest of the state," Supreme Court Chief Justice Mark Cady wrote for the court majority.

MORE: How are people reacting to the Iowa Supreme Court's abortion ruling?

MORE: Three pregnancies. Three outcomes. Three women’s tough decisions. Here are their journeys

Death knell for Iowa abortion limits?

Drake University law professor Mark Kende said the ruling included the court's strongest finding ever that Iowa women have a right to abortion under the state Constitution.

The way Cady wrote the decision is "pretty much a death knell" for any new Iowa laws limiting abortion, the professor added in an interview Friday.

The 2017 waiting-period law is separate from a stricter law passed this spring by the Republican-controlled Legislature. That "fetal heartbeat" law would be the most restrictive abortion limit in the country.

That law has been placed on hold during a different legal challenge, which is still pending.

The 2017 law said a woman could not have an abortion for at least 72 hours after an initial appointment. At that appointment, the woman would have had to be given the opportunity to view an ultrasound scan of her fetus and would be given information about abortion and its options, including adoption.

Cady wrote on behalf of the court that the waiting period would require many women with little money or access to transportation to travel twice to distant cities for appointments with Planned Parenthood of the Heartland, which is the state's main abortion provider. In some cases, the change would saddle women with hundreds of dollars in extra costs, including for transportation and lodging, he wrote.

The chief justice wrote 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," he wrote. "An objective review of the evidence shows that women do not change their decision to have an abortion due to a waiting period."

The five-justice majority also found that the waiting-period law violated Iowa women's constitutional right to equal protection under the law.

"Without the opportunity to control their reproductive lives, women may need to place their educations on hold, pause or abandon their careers, and never fully assume a position in society equal to men, who face no such similar constraints for comparable sexual activity," Cady wrote.

Dissents from two justices

Justices Edward Mansfield and Thomas Waterman dissented.

Mansfield, who is currently being considered by President Trump for a seat on the U.S. Supreme Court, noted in his dissent that abortion used to be illegal in Iowa. That changed in 1973, after the U.S. Supreme Court ruled in the Roe v. Wade that women have a right to abortion. Mansfield wrote that it's difficult to see how a limit on abortion could violate the Iowa Constitution if a ban on abortion had been considered legal under that same document for more than a century.

Outside of Iowa: How does Iowa’s abortion law compare to other states?

Mansfield also noted that Iowa law imposes waiting periods for other important life decisions. "We have a three day waiting period for marriage. There is a 72-hour waiting period after birth for adoption. There is a 90-day waiting period for divorce," he wrote. "No one can reasonably question the legislature’s power to impose these waiting periods before Iowans begin or end a marriage or give up a newborn baby for adoption. So why can’t the legislature impose a waiting period before an abortion?"

Gov. Kim Reynolds, a Republican who opposes abortion, said the decision was disappointing.

"Often, women are in crisis when facing this decision, and it’s a decision that can impact them for the rest of their lives. 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," she said in a statement.

Kende, the Drake University constitutional law professor, noted the court's majority determined any law limiting abortions should be viewed with "strict scrutiny," to see if it violates women's rights. That's a very tough standard, he said.

The dissenting justices said the court should have determined instead whether the 2017 waiting-period law placed an "undue burden" on women's right to abortion. The "undue burden" test is a less strict measure — stemming from the U.S. Supreme Court's landmark 1992 "Casey" decision — which has allowed some states' abortion restrictions to stand.

'Fetal heartbeat' law next to go?

Friday's reversal of the waiting-period law does not bode well for the new "fetal heartbeat" law, which would impose much stricter limits on Iowa women's rights to abortion, Kende said.

Proponents of the 2018 law have said they want it to reach the U.S. Supreme Court as a test case that could possibly lead to an overturning of the Roe v. Wade precedent. But opponents are challenging it in state court, and it is likely to wind up before the Iowa Supreme Court. If the Iowa justices determine the "fetal heartbeat" law violates the Iowa Constitution, it would be difficult for proponents of the law to get it before the U.S. Supreme Court, Kende said. That's because federal courts generally don't decide debates over state constitutions.

A leading Iowa abortion opponent acknowledged Friday that the waiting-period ruling could lengthen the odds for the fetal heartbeat law. "In our view, it certainly makes it more difficult, but not impossible," said Maggie DeWitte, executive director of Iowans for Life.

DeWitte added that she has faith in the Thomas More Society, a conservative legal group that volunteered to defend the fetal heartbeat law in court. The national group stepped in after Iowa Attorney General Tom Miller, who supports abortion rights, took the rare step of having his office decline to defend the new law from legal challenges.

More: Anti-abortion group seeks to strike rape and incest exceptions from Iowa's fetal abortion heartbeat law

Suzanna de Baca, chief executive officer of Planned Parenthood of the Heartland, expressed relief at Friday's ruling.

“This ruling sends a very clear message to Gov. Reynolds and to the elected officials who voted for this medically unnecessary law, that whatever you try to throw at Iowa women, the Iowa Constitution is on the side of protecting our fundamental right to abortion,” she said at a Friday afternoon press conference.

Reynolds told the Quad City Times on Friday afternoon that the Supreme Court's ruling on the waiting period could mean trouble for the "fetal heartbeat" law she signed last month.

"You never know with the courts, but it probably is an indication of what we’re up against, moving forward. You know, I think it probably is," she said.

Although it successfully challenged the waiting period requirement, Planned Parenthood did not legally challenge another part of the 2017 law, which bars most abortions after 20 weeks of pregnancy. That ban, which is in effect, includes an exception if doctors determine an abortion is necessary to preserve the life or health of the mother.

Rita Bettis Austen, legal director for the American Civil Liberties Union of Iowa, which is helping represent Planned Parenthood, said the ban on abortions after 20 weeks is clearly unconstitutional. After Friday's ruling tossing the 72-hour wait portion of the law, she said her group will now decide whether to file a legal challenge to the 20-week limit.

Iowa abortion protection, no matter what happens in federal courts?

Austen hailed the Iowa justices for declaring a fundamental right to abortion under the state Constitution.

"This opinion can’t be appealed to the federal courts," she said.

Austen added that Iowa women’s access to abortion would now be protected by even if the U.S. Supreme Court overturns its Roe v. Wade decision finding a right to abortion under the U.S. Constitution. Prospects for that happening increased this week, with the retirement of Justice Anthony Kennedy, who has been a moderate swing vote on the issue.

Chuck Hurley, vice president of the conservative group the Family Leader, told reporters he was shocked to read the majority opinion in the case. He said that despite the setback, conservatives would push forward with defending the 2018 fetal heartbeat law. “This makes the heartbeat bill — the heartbeat law — and litigation even more important,” he said.

Hurley expressed hope that conservative lawyers could find a way to have the legal fight over the heartbeat law transferred to federal court, where it might find its way to the U.S. Supreme Court. The odds of victory there jumped with news that President Trump should be able to nominate a conservative justice to replace Kennedy, he said.

The Iowa Supreme Court decided another major abortion case in 2015. In that case, the justices unanimously upheld the use of telemedicine abortions after the state medical board, appointed by Branstad, tried to ban the practice. In that case, the court used the looser "undue burden" test to find that the medical board's rules violated women's rights.

The Iowa Supreme Court overruled Polk County District Judge Jeffrey Farrell in both the telemedicine abortion case and in the new waiting period case. In both instances, Farrell had upheld the abortion restrictions.