Iowa’s long-blocked six-week abortion ban will remain permanently enjoined after the state Supreme Court deadlocked on whether it should be revived.
Gov. Kim Reynolds had asked the court to reinstate the law, which never took effect after it was passed in 2018, in the wake of major decisions last year limiting abortion protections under the Iowa and U.S. constitutions.
In opinions released Friday, Iowa Supreme Court Chief Justice Susan Christensen and Justices Edward Mansfield and Thomas Waterman favored affirming a district court’s order blocking the law; Justices Christopher McDonald, Matthew McDermott and David May favored reversing the district court.
The 3-3 split — Justice Dana Oxley was recused from the case — means the district court’s order is affirmed and that the law will remain permanently blocked.
Waterman, in the opinion joined by Christensen and Mansfield, wrote that it would be “legislating from the bench” to allow the law to go into effect.
“The State … now asks our court to do something that has never happened in Iowa history: to simultaneously bypass the legislature and change the law… and then to dissolve an injunction to put a statute into effect for the first time in the same case in which that very enactment was declared unconstitutional years earlier,” Waterman wrote.
McDonald, in the opinion joined by McDermott and May, argued that the abortion ban should be allowed to take effect, as the injunction was based upon court decisions that have since been overturned.
“When a case adjudging a statute unconstitutional is overruled, the statute becomes operative without reenactment. This has been ‘well settled’ law in this state for more than a century,” he wrote. “There is no ‘legal uncertainty’ under Iowa law; there is only my colleagues’ refusal to apply ‘well settled’ Iowa law.”
The court’s 64 pages of opinions are biting. McDonald called Waterman, Christensen and Mansfield “a three-person super general assembly,” writing that they “set aside that respect and caution” in their decision to not allow the law to take effect.
“I disagree with this results-oriented approach to deciding cases,” he wrote.
Waterman emphasized that dissolving the injunction would be “unprecedented.” He cited a 2021 Supreme Court decision that prohibits police officers from searching a person’s trash without a warrant.
“It would be ironic and troubling for our court to become the first state supreme court in the nation to hold that trash set out in a garbage can for collection is entitled to more constitutional protection than a woman’s interest in autonomy and dominion over her own body,” he wrote.
What led up to this Iowa Supreme Court abortion decision?
The Iowa Legislature passed the so-called fetal heartbeat law in 2018, and Reynolds signed it. It would ban nearly all abortions after about six weeks of pregnancy, when the first cardiac impulses can be detected in an embryo.
Opponents quickly filed the suit that resulted in the district court’s decision blocking the law from ever taking effect.
The state did not immediately appeal that decision. But the legal landscape for abortion law has shifted drastically since then. The Iowa Supreme Court ruled last summer that the state constitution does not protect a fundamental right to an abortion, and the U.S. Supreme Court overturned the landmark 1973 Roe v. Wade case, which had legalized abortion nationwide.
As a result, Reynolds asked the courts to reconsider the six-week abortion ban. The Supreme Court heard oral arguments in April on whether the state should lift the 2019 injunction on the law and allow it to take effect.
Is abortion still legal in Iowa? By default, yes
Abortion is still legal in Iowa. Friday’s ruling does not change Iowa’s abortion laws.
Abortion is currently legal in Iowa up to 20 weeks of pregnancy. Patients must wait at least 24 hours between their initial appointment and the procedure.
What is the legal standard for abortion in Iowa? It’s still unclear
Courts in the U.S. must decide whether laws wrongfully restrict an individual’s liberty or impose justifiable limits. To do this, laws are considered under a set of legal standards. If a law impacts a person’s fundamental rights, it must meet the highest legal standard of “strict scrutiny.”
Until reversing itself last year, the Iowa Supreme Court had considered abortion a fundamental right under the state constitution — so courts were likely to strike down any laws restricting abortion.
The U.S. Supreme Court in 1992 established an intermediate standard for abortion laws: “undue burden.” That standard focuses on whether a law excessively limits a woman’s ability to obtain an abortion.
But it reversed that precedent in its Dobbs decision last summer overturning Roe v. Wade, ruling that abortion laws should be subject to what is called “rational-basis review,” the lowest and most permissive standard for constitutionality challenges. To pass this test, laws need only to represent a legitimate state interest and have a rational connection between their means and goals.
Iowa’s Supreme Court also reversed its position on abortion last year, overturning the 2018 decision finding a fundamental right to abortion under the state constitution. But Mansfield, who authored the 2022 decision, wrote that “we do not at this time decide what constitutional standard should replace it,” leaving unclear what the standard going forward would be.
Friday’s outcome, with no majority, leaves that question once again unresolved.
Stephen Gruber-Miller and Michaela Ramm contributed reporting.
William Morris covers courts for the Des Moines Register, a member of the USA TODAY Network. He can be contacted at wrmorris2@registermedia.com or on Twitter at @DMRMorris. Katie Akin is a politics reporter for the Register. Reach her atkakin@registermedia.com. Follow her on Twitter at @katie_akin.
