One down, one to go.
In a momentous ruling today (in Planned Parenthood of the Heartland v. Reynolds), the Iowa supreme court today repudiated one of its two recent rulings that confers protection on abortion under the state constitution, and it strongly signaled that the other ruling is in severe jeopardy.
The issue in the case was whether to affirm a lower-court ruling that held that a law providing a 24-hour waiting period for an abortion violated the state constitution. By a vote of 5 to 2, the supreme court reversed that ruling and remanded the case to the lower court. Justice Edward Mansfield’s lead opinion garnered a majority in all but one subpart; on that subpart, two members would have gone further than Mansfield goes now.
Some brief background (drawn from Mansfield’s opinion) on the two earlier rulings:
In 2015, the Iowa supreme court held that a statewide ban on telemedicine abortions violated the state constitution. The court found it unnecessary to decide whether the state constitution conferred even more protection for abortion than the federal Roe/Casey regime did, as it found that the ban on telemedicine abortions violated Casey’s undue-burden test, which the state for some reason conceded applied under the state constitution.
In 2018, the Iowa supreme court held that abortion was a “fundamental right” under the state constitution and that a 72-hour waiting period for abortion could not satisfy the “strict scrutiny” that infringements on that supposed right were subject to.
Mansfield’s majority opinion overrules that 2018 ruling and rejects the notion that abortion is a “fundamental right” under the state constitution. But in a plurality portion of his opinion, he declines to decide what constitutional standard—e.g., “undue burden” or deferential rational-basis review—should replace strict scrutiny. Because the state hadn’t taken a position on that question, he deemed it appropriate to leave the “undue burden” test on remand as the governing standard “[f]or now.” At the same time, he expressly left open that the legal standard “may also be litigated further” in the case.
In a separate opinion, Justice Matthew McDermott, joined by Justice Christopher McDonald, would have gone further by overruling the 2015 ruling and applying rational-basis review to laws regulating abortion.
Here are some noteworthy excerpts from Justice Mansfield’s opinion (with PPH II being his shorthand for the 2018 ruling) that would seem to apply as well to future reconsideration of the undue-burden standard:
Textually, there is no support for PPH II’s reading of the due process clause as providing fundamental protection for abortion. Article I, section 9 states, “[N]o person shall be deprived of life, liberty, or property, without due process of law.” Iowa Const. art. I, § 9. Section 9 doesn’t speak in terms of absolutes. If liberty cannot be limited without due process of law, the logical implication is that liberty can be limited with due process of law. Certainly that conclusion seems correct when there are important interests—such as life itself—on both sides….
Historically, there is no support for abortion as a fundamental constitutional right in Iowa. As the PPH II dissent pointed out, abortion became a crime in our state on March 15, 1858—just six months after the effective date of the Iowa Constitution—and remained generally illegal until Roe v. Wade was decided over one hundred years later.…
Beyond its textual and historical flaws, PPH II is also flawed in its core reasoning. Constitutions—and courts—should not be picking sides in divisive social and political debates unless some universal principle of justice stands on only one side of that debate. Abortion isn’t one of those issues….
As part of his explanation why stare decisis principles don’t weigh heavily in favor of retaining the 2018 ruling, Justice Mansfield observed:
PPH II was overtly based on the notion of a “living” constitution…. To the extent PPH II viewed constitutional interpretation as an evolutionary process rather than a search for fixed meaning, it is hard now to argue that the evolutionary process had to end as soon as PPH II was decided. Does the Iowa Constitution get to “live” until 2018, at which point it must stop living?