Iowa Supreme Court Strikes Down 72 Hour Abortion Waiting Period

Jun 29, 2018

The Iowa Supreme Court struck down a law Friday requiring women seeking abortions to wait 72 hours between an initial appointment and getting the procedure.

In a 5-2 decision, the court ruled the waiting period violates the due process and equal protection clauses of the Iowa Constitution.

“At stake in this case is the right to shape, for oneself, without unwarranted governmental intrusion, one’s own identity, destiny, and place in the world,” wrote Chief Justice Mark Cady in the majority opinion. “Nothing could be more fundamental to the notion of liberty. We therefore hold, under the Iowa Constitution, that implicit in the concept of ordered liberty is the ability to decide whether to continue or terminate a pregnancy.”

Cady pointed to evidence showing a mandatory waiting period does not lead many women to change their minds about getting abortions.

Planned Parenthood of the Heartland and the ACLU of Iowa launched the legal challenge to the waiting period in 2017. The provision was one of several restrictions on abortion enacted by Republican lawmakers last year.

“We get to tell our patients and our supporters and the world, that their care is no longer under threat from this disastrous law,” said Planned Parenthood of the Heartland CEO Suzanna de Baca. “And furthermore, access to abortion is constitutionally protected as a fundamental right in the state of Iowa.”

University of Iowa law professor Todd Pettys said Friday’s decision means abortion rights now have stronger protections under the Iowa Constitution than under the U.S. Constitution.

“The [Iowa] Supreme Court has said today that women have a fundamental right, and in the language of the law that means a very strongly protected right, of autonomy and control over their own body that includes a right to abortion,” Pettys said.

Republican Gov. Kim Reynolds said in an email she is disappointed by the ruling.

“Often, women are in crisis when facing this decision, and it’s a decision that can impact them for the rest of their lives,” Reynolds said. “I don’t think it’s unreasonable to require 72 hours for someone to weigh their options and the important decision they are about to make.”

In May, Reynolds signed a bill that’s being called the strictest abortion law in the country. With some exceptions, it bans abortions after a fetal heartbeat is detected, which can be as early as six weeks into a pregnancy.

Planned Parenthood of the Heartland and the ACLU of Iowa are also challenging that law, and a court recently blocked it from taking effect while the lawsuit plays out.

Pettys said Friday’s ruling on the 72-hour waiting period will be “front and center” as courts consider the fetal heartbeat bill.

“I think it would likely be found unconstitutional under the kind of reasoning the court applied today,” Pettys said.

He added even if the U.S. Supreme Court were to reverse the 1973 Roe v. Wade decision that legalized abortion, abortion rights would still be protected in Iowa unless the Iowa Supreme Court took action, or the state constitution was amended.

Chief Justice Cady wrote the court does not hold that a woman’s right to terminate a pregnancy is unlimited, and “it is subject to reasonable regulation.”

Iowa Supreme Court Justice Edward Mansfield wrote the dissenting opinion, which Justice Thomas Waterman joined. Mansfield wrote other courts have upheld abortion waiting periods, and that the majority opinion partly “relies on an undertone of moral criticism toward abortion opponents.”

“From reading the majority opinion, one would be scarcely aware that many women in Iowa are pro-life and strongly support the same law the court concludes unconstitutionally discriminates against them,” Mansfield wrote.

Mansfield is on President Trump’s list of potential U.S. Supreme Court nominees to take the place of retiring Justice Anthony Kennedy.

Chuck Hurley of The Family Leader, an anti-abortion-rights group, said in a statement it’s “shocking” the Iowa Supreme Court declared a fundamental right to abortion.

“This makes the heartbeat case all the more important,” Hurley said.