Iowa Supreme Court should permit enforcement of six-week abortion ban, state argues

DES MOINES, Iowa (CN) — The state of Iowa urged its Supreme Court on Thursday to adopt a standard of constitutional review that would mean the state’s six-week abortion ban is enforceable under the Iowa Constitution.

Justices of the Iowa Supreme Court heard oral arguments Thursday in an appeal from a trial court that temporarily blocked enforcement of a 2023 statute that would ban abortion after fetal cardiac activity can be detected, which is at about six weeks of gestation.

In the temporary injunction from July 2023, the trial court determined that the abortion providers who sued to block the law were likely to prevail on the merits under the undue burden standard first articulated by the U.S. Supreme Court in 1992 and adopted by the Iowa Supreme Court.

In defending the law, Iowa’s Attorney General argues the Iowa Supreme Court should instead apply a rational basis review —the least restrictive standard for assessing constitutionality of abortion regulations. Using that standard, Iowa’s six-week abortion ban would pass constitutional muster, the state maintains.

Planned Parenthood of the Heartland, which challenged the statute, argues the court should keep in place the more restrictive undue burden standard from 1992's Planned Parenthood v. Casey.

In a question posed to Iowa Solicitor General Eric Wessan, Chief Justice Susan Christensen asked: “How would the law fare if were to apply the undue burden standard?”

Wessan acknowledged that the “undue burden standard involves a per se rule prohibiting any restriction on abortion before viability. This law restricts access to abortion when a fetal heartbeat is detected, which is before viability. Under the Casey undue burden test, this law would fail.”

Justice Thomas Waterman asked Wessan if the state could outlaw abortion altogether under rational basis review.

Quoting former U.S. Chief Justice William Rehnquist’s dissent in Roe v. Wade, where he acknowledged that if the State of Texas had tried to ban abortion altogether without protection for the life of the mother, Wessan said it would not survive rational basis review.

“What right does a woman have to control her own healthcare decisions, including terminating a pregnancy? Any right?” Waterman asked.

"Enumerated rights protected by substantive due process jurisprudence under Iowa’s constitution are all important. But they are not all fundamental," Wessan said. "And rational basis review is not a carte blanche for the state to enact laws that have no reasonable relationship to the values that they’re trying to protect.”

Wessan told the court that the fetal heartbeat statute “protects important rights, important interests that this court has repeatedly recognized are held by the state, that the legislature and the governor have stepped up to enforce the right of life, the important value of health and wellbeing of mothers, the integrity of the medical profession."

"To think that there is not even a rational basis for a law protecting unborn life would set this court apart," he added.

Peter Im, a lawyer for the Planned Parenthood Federation of America, reminded the Iowa Supreme Court of its own words in a recent ruling on abortion.

“Two years ago, a plurality of this court stated that ‘autonomy and dominion over one’s own body go to the very heart of what it means to be free.’ That’s what’s at stake in this case," he said. "It’s Iowans’ decisions, private and personal medical decisions, to exercise bodily autonomy, and to decide when and whether to have children.”

Justice David May asked Im to consider the implications if Iowa were to develop a new standard for evaluating the constitutionality of abortion laws.

"Should we consider the history of Iowa going back to the founding and the way abortion has been regulated in the past?” he said.

Im responded that the state’s founding history has a bearing on constitutional interpretation, “but I think it also bears noting that in the 19th century women were not equal citizens in Iowa, and this court does not use history as a trump card.”

He cited the Iowa Supreme Court’s own pioneering record on recognizing civil rights under the Iowa Constitution, including its 2009 decision in Varnum v. Brien legalizing same-sex marriage and before that the 1839 In Re the Matter of Ralph decision recognizing the civil rights of a former slave.

“It did not do so in Varnum, and in fact it has a long history going back to In re Ralph where this court has protected individual rights much broader than the federal constitution," he said.

Follow @@roxalaird16

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit