Here is a quick update on the Iowa fetal heartbeat case. On December 7 an Iowa district court held a hearing on Planned Parenthood’s motion for summary judgment. As the Des Moines Register explained in its coverage of the hearing:
The district court judge indicated he will not issue a ruling until February, but in the meantime the latest developments make me think that my previous analysis of the case was wrong. Planned Parenthood and the other petitioners are in a much better position than I originally thought. Here is why.
First, some background. In May the Iowa legislature banned most abortions after a fetal heartbeat is detected, which can be as early as 6 weeks into a pregnancy, before many women even know they are pregnant. Almost immediately Planned Parenthood challenged the fetal heartbeat law under the Iowa Constitution, but not the federal constitution (as part of a strategic decision to avoid federal appellate jurisdiction).
One month later, in a case involving Planned Parenthood’s challenge to the state’s 3-day waiting period for abortions, the Iowa Supreme Court held that the the waiting period violated the Iowa state constitution. In addition the majority declared that there is a fundamental right to abortion under the state constitution, thus applying strict scrutiny to abortion regulations in Iowa. The waiting period ruling (which was decided by a 5-2 vote) seemed to guarantee victory for Planned Parenthood in the fetal heartbeat case.
But in the past four months, two justices from the 5-2 majority have retired from the court. Consequently, only 3 justices remain from the majority in the waiting period case. In addition, the same governor who signed the fetal heartbeat bill into law will appoint the new justices (one of whom has already taken her seat on the court).
In my previous post (which I've pasted below), I argued that the changing composition of the court and the reelection of the pro-life governor spelled trouble for Planned Parenthood’s challenge to the fetal heartbeat bill. I also speculated that the state might contend either that the state constitution does not protect the right to abortion or that it provides less protection than the Casey undue burden standard of the federal constitution.
But as the summary judgment hearing revealed, the state’s counsel now concedes that abortion is a fundamental right under the Iowa Constitution. As one of the attorneys from the Thomas More Society (the outside counsel representing the state) explained, “Take it as a given that it’s a fundamental right. That doesn’t mean it’s totally hands off. It means regulate it carefully.” He also minimized the impact of the law, claiming that “[w]e haven’t banned any abortions. We have just taken the abortions that are all over the map time-wise and said, ‘Have them promptly. You can do it. There’s plenty of time.’”
The state’s legal argument seems exceptionally weak to me. Perhaps I am missing something, but to claim that women have “plenty of time” to exercise their right to an abortion under a fetal heartbeat law does not strike me as a persuasive line of argument. It sounds like a sure loser. Moreover, after rereading the dissenting opinion in the waiting period case, I do not think it is nearly as unfavorable to Planned Parenthood as I originally thought.
Before I go any further, here is my old post on the subject, which provides more background on the judicial retirements and includes my (erroneous) speculation regarding the state’s legal strategy:
OLD POST
In a development that could dramatically change the course of abortion law in the United States, Justice Daryl Hecht of the Iowa Supreme Court announced earlier this month that he is retiring for health reasons.
Under normal circumstances, the retirement of a state supreme court justice does not have national implications. But this retirement is different. In May the Iowa legislature passed the most restrictive abortion law in the country, one that bans most abortions after a fetal heartbeat is detected. Iowa’s new abortion law received only modest national attention last spring because it seemed certain to be struck down on state constitutional grounds by the Iowa Supreme Court.
But Hecht’s retirement completely changes the analysis. He is the second pro-choice justice to retire from the state supreme court in the last three months, and under Iowa law the state’s governor selects new justices (in conjunction with a merit selection process). There is no mystery as to the kind of justice that Iowa Gov. Kim Reynolds prefers. A pro-life Republican, Gov. Reynolds signed the fetal heartbeat bill into law and has promised to put pro-life judges on the bench.
Justice Hecht’s retirement thus sets the stage for the most momentous battle over abortion since the 1992 U.S. Supreme Court case of Planned Parenthood of Southeastern Pennsylvania v. Casey.
Two Key Retirements
When the Iowa legislature passed the fetal heartbeat law six months ago, the new statute’s legal defeat seemed a foregone conclusion. After all, in two recent cases, a clear majority of the Iowa Supreme Court held that the Iowa Constitution provides at least as much protection for abortion rights as the U.S. Constitution provides under the Casey ruling.
But in August one of the justices in the majority—Bruce Zager—retired. Gov. Reynolds replaced Zager with Susan Christensen, a conservative judge from rural Iowa. After appointing Justice Christensen, Reynolds made the state supreme court a centerpiece of her reelection strategy. The governor’s senior legal adviser announced that if Reynolds won reelection, she would appoint additional conservatives to overturn the Iowa Supreme Court’s left-of-center rulings. The adviser specifically cited abortion and same sex marriage as the two issues the governor had in mind.
On November 6, in one of the closest gubernatorial races in the country, Governor Reynolds narrowly won reelection. A few days later, Justice Hecht announced his decision to retire to focus on his treatment for melanoma. Reynolds’s victory and Hecht’s retirement means that in all likelihood a much more conservative Iowa Supreme Court will decide the constitutionality of the fetal heartbeat law.
The Challengers’ Legal Strategy
Adding to the interesting nature of the Iowa abortion case is a strategic calculation that the ACLU and Planned Parenthood made last spring. They decided to challenge the fetal heartbeat law under the Iowa Constitution exclusively, not under the federal constitution. The strategy was designed to avoid the appellate jurisdiction of the increasingly conservative U.S. Supreme Court.
At the time it looked like a sensible decision. In June 2018 the Iowa Supreme Court struck down a 72-hour waiting period for abortion on grounds that it violated the equal protection and due process clauses of the Iowa Constitution. In a 5-2 ruling, the Court held that the Iowa Constitution broadly protects a woman’s right to an abortion, to a degree even greater than the federal constitution. Writing for the majority, Chief Justice Mark Cady asserted that:
The majority also viewed the abortion restriction as a violation of the state’s due process clause. As Chief Justice Cady explained in the majority holding:
“Parenthood is more than biological procreation. It embraces a bond that defies description, but also a series of social and moral expectations that demand a parent takes responsibility to provide for his or her child. Well into the twenty-first century, this expectation continues to fall disproportionately upon the child’s mother. Motherhood compels devotion and considerable sacrifice. Whether a woman is personally prepared and capable of assuming life-altering obligations and expectations is a decision about which the government has scarce insight. . . .
Autonomy and dominion over one’s body go to the very heart of what it means to be free. 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. 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.”
Applying strict scrutiny, the Iowa Supreme Court struck down the 72-hour abortion waiting period in its June 2018 ruling.
But now, just five months later, the two swing votes on the court—Hecht and Zager—have retired. Consequently, there is at least a possibility that a new, Republican-appointed majority will uphold the fetal heartbeat law on the grounds that the Iowa Constitution provides less protection for abortion rights than the U.S. Constitution does under Roe v. Wade and Planned Parenthood v. Casey.
The Mansfield Dissent
We already have a potential hint at the conservatives’ reasoning. In a dissenting opinion in the 72-hour waiting period case last June, Justice Edward Mansfield (joined by his fellow conservative, Justice Thomas Waterman) observed that:
“the Iowa Constitution . . . became effective on September 3, 1857. Six months later, on March 15, 1858, the general assembly adopted a law making abortion a crime under all circumstances, ‘unless the same shall be necessary to preserve the life of such woman.’ Abortion remained generally illegal in Iowa until Roe v. Wade was decided over one hundred years later. Given this timing, i.e., the fact that a ban on abortion was adopted right after the constitution became effective, it is difficult to conceive that a legislatively mandated waiting period for abortion would have violated the original understanding of either article I, section 9 or article I, section 6 [the state’s due process and equal protection clauses].”
In addition, Justice Mansfield emphasized that the U.S. Supreme court in Casey upheld a Pennsylvania waiting period for abortions. He also took particular exception to the majority’s equal protection argument. “From reading the majority opinion,” he observed, “one would scarcely be aware that many women in Iowa are prolife and strongly support the same law the court concludes unconstitutionally discriminates against them.”
To put it mildly, Mansfield’s dissent in the Iowa waiting period case does not bode well for the ACLU and Planned Parenthood. With a conservative majority suddenly emerging on the state supreme court, the originalist portions of Mansfield’s dissent could lay the foundation for a conservative majority opinion in the fetal heartbeat case.
Interestingly, Mansfield’s strong dissent in the 72-hour waiting period case may have come as a surprise to the ACLU and Planned Parenthood. In a 2015 Iowa Supreme Court case striking down the Iowa Board of Medicine’s ban on telemedicine abortions, both Mansfield and Waterman joined the court’s unanimous ruling that the Iowa Constitution follows Casey.
Crucially, however, the state board of medicine never raised the argument that the Iowa Constitution provided less protection for abortion rights than the federal Constitution as interpreted by Casey. The board’s failure to litigate the issue seems to have played a decisive role in Manfield’s reasoning. As he explained in a footnote to his dissent in the waiting period case last June:
In the fetal heartbeat case, however, the state of Iowa has no choice but to argue that the Iowa Constitution does not follow Casey. The Iowa law bans abortions after 6 weeks (the point at which fetal heartbeats are normally detected), which directly flies in the face of Casey’s emphasis on fetal viability. Recent studies place fetal viability somewhere between 22 and 24 weeks (the exact point is hotly debated). In any case, it is clear that the Iowa law bars abortion at least three to four months before the fetus becomes viable, which is starkly inconsistent with Casey.
Thus, the only way for the state to defend the fetal heartbeat law is to argue that the state’s constitution does not follow Casey. In light of that inescapable reality, Tom Miller, the state’s long-time Democratic Attorney General, has refused to defend the new abortion law. In response, and on Attorney General Miller’s recommendation, the conservative Thomas More Society has stepped in to argue on the state’s behalf.
The pro-life organization will presumably make a much more robust state constitutional argument than the attorney general did in the state’s previous abortion cases. Indeed, by arguing for a state standard other than Casey, the Thomas More Society will finally tee up the state constitutional issue for the conservative justices, a potentially ominous development for the parties challenging the fetal heartbeat law.
Next stop SCOTUS?
Of course, even if the Iowa Supreme Court’s new conservative majority upholds the Iowa abortion law as a matter of state constitutional law, opponents of the abortion ban will immediately respond by bringing a challenge under the federal constitution.
But that would then put the case squarely within the appellate jurisdiction of the U.S. Supreme Court, which is exactly the scenario the ACLU and Planned Parenthood hoped to avoid by only asserting state constitutional claims. And this time around Justice Brett Kavanaugh, not Justice Anthony Kennedy (who co-authored the Casey opinion), may hold the deciding vote.
In the meantime the ideological balance on the U.S. Supreme Court could move even further to the right. Although the Republicans suffered historic losses in the 2018 U.S. House elections, they expanded their U.S. Senate majority, which means Donald Trump will have no trouble filling any future Supreme Court openings with highly conservative nominees. Accordingly, if a case challenging Iowa’s fetal heartbeat law eventually reaches the U.S. Supreme Court, Iowa’s abortion ban may well receive a far more congenial reception than would have been the case just six months ago.
In short, an enormous amount rests on the person that Gov. Kim Reynolds selects to replace Justice Hecht. Stay tuned.
END OF OLD POST
As I discussed at the top of this current post, the summary judgment hearing renders moot the reasoning in my old post.
But that is not the only thing that makes me question my original analysis of the case. I also think the dissenting opinion in the waiting period case is more promising for Planned Parenthood than I first thought. Although it is true that the dissenting justices rejected the majority’s argument that abortion is a fundamental right under the Iowa state constitution, and would have upheld the 72-hour waiting period, Justice Mansfield and Justice Waterman took a carefully nuanced position in their dissent. For example, here is the full passage in the dissenting opinion, which I only partially quoted above:
In my original post, I emphasized the last three sentences. But the key sentence, I think, is the one that follows the Scalia quote, where Justice Mansfield wrote: “On a blank slate, I might agree with this view, but we have now been living under Casey for a generation.” On rereading it, I think it clearly suggests that the dissenters will not abandon Casey lightly. Indeed, looking again at the paragraph in context, I think I put too much emphasis on the “For now” part and not enough on the “I find Casey persuasive” part.
There is one other part of the dissent that is particularly noteworthy. In a key passage, Justice Mansfield wrote:
“Like those other state courts, I would apply Casey under the Iowa Constitution, at least until the Supreme Court offers a different legal standard for our consideration. As of now, I am persuaded by the thoughtful and nuanced analysis undertaken by Justices O’Connor, Kennedy, and Souter for the Supreme Court plurality in Casey.”
Although the “as of now” language obviously tempers the dissent’s endorsement of Casey, the dissenting opinion is still a fairly strong endorsement of the undue burden standard. Accordingly, even though only 3 of the current justices found that abortion was a fundamental right under the state constitution, the 2 dissenting justices seem content to continue applying the Casey undue burden test under the Iowa constitution. Thus at least 5 of the 7 justices on the state supreme court will likely apply either Casey or strict scrutiny to the fetal heartbeat law.
That, in turn, suggests that Planned Parenthood’s chances of ultimate success in the fetal heartbeat case are far better than I originally conjectured. It seems to me it all boils down to a single question: How can a law that effectively bans abortion four months before fetal viability possibly be upheld under the Casey undue burden standard, let alone under strict scrutiny? The question, I think, answers itself.
But I will not speculate any further. I have been proven wrong before. I once confidently predicted that Hillary Clinton would defeat Donald Trump in the 2016 presidential election. We all know how that election turned out. In an effort to learn from my past mistakes of prognostication, I will patiently wait for the court to rule on the summary judgment motion without venturing any more guesses about the ultimate outcome. And, of course, I will update The Faculty Lounge readers as soon as the ruling is announced. In the meantime, whenever I feel tempted to make another prediction about this case (or any case for that matter), I will remind myself of the words of the great philosopher Yogi Berra, who once said, “It is tough to make predictions, especially about the future.” Wiser words have never been spoken.
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