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A sign reads “Abortion is a personal choice, not a legal debate” at a reproductive rights protest at Cowles Commons in Des Moines. Wednesday, May 4, 2022. — Britt Fowler/Little Village

Abortion remains legal in Iowa up to the 20th week of pregnancy as Gov. Kim Reynolds’ latest effort to outlaw almost all abortions in Iowa failed on Friday. The Iowa Supreme Court split 3-3 on her unprecedented petition to have the court dissolve the 2019 permanent injunction on the six-week abortion ban the governor signed into law in 2018, leaving a lower court ruling rejecting it.

“This case is extraordinary,” Justice Thomas Waterman wrote. “It involves the polarizing issue of abortion, and specifically an unprecedented effort to judicially revive a statute that was declared unconstitutional in a never-appealed final judgment four years ago.”

It is the Iowa Supreme Court’s “longstanding practice” not to issue opinions when the court is evenly divided, Waterman explained in his opinion. But the three justices who would have ruled in the governor’s favor — David May, Matthew McDermott and Christopher McDonald — “insist on writing, so we must explain our views to provide balance.”

Waterman was joined in his opinion by Chief Justice Susan Christiansen and Justice Edward Mansfield. Justice Dana Oxley recused herself, because the law firm at which she was formerly a partner had participated in the case that resulted in the permanent injunction, representing the Emma Goldman Clinic, one of the parties that challenged the six-week abortion ban.

The law Reynolds was seeking to enforce would have banned almost all abortions after any cardiac activity can be detected by ultrasound. That typically occurs at six weeks, before many people are even aware they are pregnant.

The governor and other proponents call it a “fetal heartbeat” law, but that’s an advertising slogan, not a medically accurate description. What the ultrasound is detecting is a “fluttering” that is the earliest indication of cardiac activity. But at six weeks, there is no heartbeat because the heart hasn’t formed yet. And medically speaking, an embryo isn’t considered a fetus until 11 weeks. Still, justices on both sides of Friday’s decision chose to use the term fetal heartbeat.

Following the Iowa Supreme Court’s June 2022 decision in a case it refers to as Planned Parenthood of the Heartland IV (PPH IV), in which the court not only upheld a medically unnecessary 24-hour waiting period for an abortion but also reversed itself and declared abortion was not a fundamental right protected by the Iowa Constitution, and the U.S. Supreme Court striking down Roe v. Wade a week later, Reynolds unveiled her strategy for severely restricting access to abortion care in Iowa.

First, the governor petitioned the Iowa Supreme Court to rehear PPH IV, in hopes the justices would be persuaded to follow the example of the U.S. Supreme Court and replace the “undue burden” standard of review for abortion laws with a lesser standard that would allow almost any abortion restriction to be declared constitutional. Prior to PPH IV the standard of review for abortion laws used by Iowa courts for abortion laws was strict scrutiny, the most stringent standard, but that was changed in PPH IV.

The Iowa Supreme Court rejected the governor’s petition to reopen PPH IV in July 2022.

The other part of the governor’s legal strategy was to petition the courts to dissolve the permanent injunction on the six-week abortion ban issued by a district court in January 2019. The governor had chosen not to appeal that decision when it was handed down. Iowa court procedure gives a party 30 days to appeal a final judgment. Reynolds waited 1,297 days before filing her motion to dissolve the injunction.

The governor’s request was unprecedented, and in December 2022, Polk County District Court Judge Celene Gogerty rejected all the governor’s arguments, saying the court had no authority to do what she was asking.

Reynolds’ strategy may not have had legal merit, but as a political ploy, it was highly successful. It allowed her and other Republicans to evade questions about post-Roe abortion bans during last year’s election by saying they were waiting for the Iowa Supreme Court’s ruling. Polling consistently shows a majority of Iowans support access to abortion.

There was nothing stopping Republicans in the Iowa Legislature from passing another six-week abortion ban this year, other than the fact they would now have to deal with the consequences of their votes.

“[W]hen the statute was enacted in 2018, it had no chance of taking effect,” Waterman wrote in his opinion. “To put it politely, the legislature was enacting a hypothetical law.”

That’s no longer the case since Roe was struck down.

Hundreds rally in protest of the Supreme Court’s ruling overturning the federal right to an abortion in the United States on Friday, June 24, 2022. The demonstration was perhaps the largest in Iowa City since the summer of 2020. — Jason Smith/Little Village

“But uncertainty exists about whether a fetal heartbeat bill would be passed today,” the justice continued. “To begin, a different general assembly is in place than was in place in 2018, with significant turnover of membership in the intervening three election cycles.”

Waterman noted legislators had taken no action to restrict abortion this year, even though the lower court’s decision rejecting Reynolds motion to dissolve the injunction happened before the start of this year’s session.

“In our view, it is legislating from the bench to take a statute that was moribund when it was enacted and has been enjoined for four years and then to put it into effect,” Waterman wrote.

Allowing a challenge to an injunction created four years ago, with no substantial change in the facts of the case in the intervening period, would also “undermine the finality of judgments.”

The three justices who would have dissolved the permanent injunction and sent the case back to a district court to determine if the six-week abortion was still unconstitutional basically argued that the U.S. Supreme Court’s overturning of Roe was significant enough to reverse the lower court. They downplayed the significance of what they wanted to do. Waterman, on the other hand, highlighted it.

“The State … asks our court to do something that has never happened in Iowa history: to simultaneously bypass the legislature and change the law, to adopt rational basis review, 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 suggested the justices who would have dissolved the permanent injunction were reading PPH IV “selectively” to justify their opinions. Although that decision did eliminate abortion as a fundamental right, “PPH IV recognized that [a]utonomy and dominion over one’s body go to the very heart of what it means to be free.’”

Concluding his opinion, Waterman quoted from the 2021 opinion written by Justice McDonald, one of the three who supported Reynolds’ position. In that case, the court held that Iowa law provided a higher degree of protection against police searches of garbage someone has put out for collection than federal law does.

“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,” he wrote.

After the court announced its split, which served to affirm the lower court ruling, Gov. Reynolds issued a statement that began, “To say that today’s lack of action by the Iowa Supreme Court is a disappointment is an understatement.” The statement concludes, “But the fight is not over. There is no right more sacred than life, and nothing more worthy of our strongest defense than the innocent unborn. We are reviewing our options in preparation for continuing the fight.”

This story originally appeared in LV Daily, Little Village’s Monday-Friday email newsletter. Sign up to have it delivered for free to your inbox.