Today the Iowa Supreme Court issued a groundbreaking decision in Planned Parenthood of the Heartland v. Reynolds that at least begins the process of getting that court out of the business of dictating abortion policy to elected officials under the guise of state constitutional law. Rejecting a challenge to Iowa’s required 24-hour waiting period prior to getting an abortion, the court overruled a 2018 precedent striking down a 72-hour waiting period under a stringent “strict scrutiny” standard for abortion.
Another of the court’s abortion precedents, from 2015, recognized the U.S. Supreme Court’s “undue burden” test developed in Planned Parenthood v. Casey as also applying under the state constitution. Under today’s decision, written by Justice Edward Mansfield, that remains the applicable test in Iowa “[f]or now,” but perhaps not for long as the court explicitly stated that “the legal standard may . . . be litigated further.” The court seems open to ridding itself of that muddled standard upon further litigation, even going as far as to openly suggest that the pending Dobbs v. Jackson Women’s Health Organization case in the U.S. Supreme Court, once decided, “may provide insights that we are currently lacking.”
Read Ed Whelan’s post for an incisive review of today’s decision. I will add that this is a reminder of the importance of preparing for the legal landscape that would follow the overturning of Roe v. Wade and Casey. Many of the highest courts among the fifty states are dominated by activist judges who would readily concoct a right to abortion if they have not done so already. In many states, there is a major risk that judges will feel emboldened to override by judicial fiat pro-life measures passed by elected officials.
For living constitutionalists, it does not matter that, as is the case with the U.S. Constitution, no state constitution enumerates a right to abortion. (At least for now; a Vermont ballot measure, if approved this year, would make that state the first to do so.) State court judges who feel unanchored to legal text and original meaning have long shown the same tendency to blur their policy preferences into law as the more familiar Supreme Court activists have. This has been visible on issues ranging from the death penalty to tort reform.
One of the nation’s most prominent living constitutionalists encouraged this trend. In a 1977 law review article, Supreme Court Justice William Brennan, finding himself on the losing side of an increasing number of cases on the high court, famously called upon “state courts to step into the breach” with their own, more expansive interpretations of rights under state constitutions and statutes.
This remains a rallying cry on the Left in recent times. And of course, their principal grievance with originalist judges is not with expansive readings of rights that are actually in the Constitution. Living constitutionalists have been amassing a track record of trying to shrink such rights, including notably religious liberty and political speech under the First Amendment and the right to keep and bear arms under the Second Amendment. Where they would like to be more expansive is in fact in the invention of rights that constitutions, state and federal, simply do not confer.
Abortion is the consummate example of a right concocted out of thin air. No standing precedents of the Court are more highly charged—or less persuasive—than Roe and Casey. Once the Court, barring the unexpected, overrules them in Dobbs, the challenge on the state level will become more pronounced as state supreme court judges face new temptations to overstep their bounds and impose their own versions of Roe v. Wade. This is why public vigilance about the composition of our courts must not be limited to the federal bench. For representative democracy to thrive, we need constitutionalist judges on state courts.