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Deadlocked Iowa Supreme Court will not reinstate 6-week abortion ban

 iowa supreme court building
John Pemble
IPR file
The Iowa Supreme Court has declined to reinstate a six-week abortion ban, which means abortion remains legal in Iowa up to 20 weeks of pregnancy.

The Iowa Supreme Court declined to reinstate a six-week abortion ban Friday, which means abortion remains legal in Iowa up to 20 weeks of pregnancy.

The court deadlocked in a 3-3 tie on the issue, leaving a 2022 district court ruling in place that rejected Gov. Kim Reynolds’ request to reinstate the “fetal heartbeat” law.

Justice Thomas Waterman, joined by Susan Christensen and Edward Mansfield, wrote they would decline Reynolds’ request. Justice Christopher McDonald sided with Reynolds in an opinion joined by Matthew McDermott and David May.

Justice Dana Oxley did not take part in the decision because of an unspecified conflict of interest. All seven justices were appointed by Republican governors.

Reynolds, a Republican, signed a law in 2018 that bans abortions when a “fetal heartbeat” is detected, with some exceptions. That can be about six weeks after a person’s last period, when many people don’t know they’re pregnant and the pregnancy is still in the embryonic stage.

The law was blocked by the Polk County District Court and never took effect, with a judge ruling in 2019 that the law was unconstitutional based on state and federal abortion rights protections. Reynolds did not appeal the decision to the Iowa Supreme Court at the time.

But last June,the Iowa Supreme Court ruled there is no fundamental right to abortion subject to strict scrutiny, undermining the state’s strong abortion rights protections. Then, the U.S. Supreme Court overturned Roe v. Wade, ending federal protection for abortion rights.

Following those decisions, Reynolds asked the courts to reinstate the six-week ban.

“To say that today’s lack of action by the Iowa Supreme Court is a disappointment is an understatement,” Reynolds said in a statement. “Not only does it disregard Iowa voters who elected representatives willing to stand up for the rights of unborn children, but it has sided with a single judge in a single county who struck down Iowa’s legislation based on principles that now have been flat-out rejected by the U.S. Supreme Court.”

Reynolds said she is reviewing options for continuing to pursue abortion restrictions.

Senate Majority Leader Jack Whitver and House Speaker Pat Grassley, both Republicans, said they will work to pass new abortion restrictions. That could happen when the legislature’s regular session begins in January or sooner if a special session is called.

Planned Parenthood, the Emma Goldman Clinic and the ACLU of Iowa argued against the six-week ban in court.

Francine Thompson, executive director of the Emma Goldman Clinic in Iowa City, said in a statement she is celebrating the Iowa Supreme Court’s order.

“The ruling today helps to safeguard the rights of individuals to make decisions about their own bodies and reproductive futures,” Thompson said. “The result protects reproductive freedom and is a significant step forward in protecting the health and wellbeing of those seeking comprehensive health services in Iowa.”

Medical expertshave criticized the phrase “fetal heartbeat”in the context of abortion laws because a pregnancy is not medically recognized as a fetus until about 10 weeks after a person’s last menstrual period. Electrical activity can be detected as early as six weeks from the last period, when a pregnancy is still considered an embryo and the heart is not fully developed.

According to Planned Parenthood, the law would have blocked about 98% of abortions in Iowa and forced people to travel out of state, seek abortion pills from non-medical sources, or give birth against their will.

How did the justices explain their positions?

Drake University Law Professor Sally Frank said it’s not typical for justices to write long opinions for tied votes because they don’t create new legal precedent. But they explained their positions this time.

“This is such a controversial and public case that they may have felt the public should understand the reasoning for their positions,” Frank said.

Justice Waterman wrote reinstating the abortion ban years after Reynolds missed the deadline for an appeal would be an unprecedented legal move and would be “legislating from the bench.”

He wrote the current legal standard for abortion restrictions in Iowa is the “undue burden” test, which doesn’t allow for strict abortion bans, not the “rational basis” test that Reynolds has urged the court to adopt.

“The unprecedented jurisdictional and procedural issues presented in this case fall away if the legislature enacts a new abortion law,” Waterman wrote. “Nothing like this case has come up in Iowa’s legal history before or is likely to come up again.”

He wrote if lawmakers pass a new abortion law, the Iowa Supreme Court could reconsider the legal test for abortion restrictions.

Justice McDonald wrote the six-week ban should take effect because the undue burden standard doesn’t apply after last year’s court decisions on abortion.

He accused the other three justices of attempting to expand the court’s power and limit the legislature’s, and wrote their reasons for doing so “are not logical, legal or legitimate.”

“This court’s constitutional power does not give it the authority to hold a law unconstitutional because the law conflicts with our personal views,” McDonald wrote.

He added that courts have the authority to reinstate a law if legal circumstances change, regardless of how much time has passed.

This story was updated Friday, June 16 at 4:40 p.m.

Katarina Sostaric is IPR's State Government Reporter