Judge questions her own authority to reinstate Iowa abortion ban

A district court judge will decide within the next two months whether a state law that would ban most abortions after a fetal heartbeat is detected — which was blocked by a court order nearly four years ago — should go into effect.

At issue is whether court rules allow the judge to review the permanent injunction more than a year after it was initiated and if so, what standard of judicial review should be applied to the abortion law.

“The people of Iowa, through their elected representatives, spoke on the issue of abortion in 2018,” Christopher Schandevel, an attorney for Gov. Kim Reynolds, said Friday during a court hearing on the governor’s motion to vacate the injunction.

He added: “The fetal heartbeat law is constitutional, and it would be inequitable to allow the injunction to remain in force.”

Reynolds wants the judge to end an injunction that was issued in 2019 and permanently blocked the law from taking effect. That order came the year after the Iowa Supreme Court determined that there was a fundamental right to abortion in the state constitution that subjected any law that would limit abortion to the highest judicial scrutiny.

The “strict scrutiny” standard required abortion laws in the state to be narrowly written for a compelling public purpose.

However, four of the five justices who signed that majority opinion in 2018 have since left the high court. Reynolds appointed all of their successors, and a new majority overturned that decision June 17 when the court considered a state law that required a 24-hour waiting period for those seeking abortions.

That was one week before the U.S. Supreme Court overturned Roe v. Wade, which had established the nationwide right to abortion about five decades ago, and Planned Parenthood v. Casey, which imposed an “undue burden” test on laws that would limit abortion. That test isn’t as hard to pass as strict scrutiny.

The Iowa Supreme Court declined in June to determine what judicial test is appropriate for state abortion laws, citing the then-pending federal decision. Reynolds wants the court to use a “rational basis” test, which is the lowest hurdle of the three. A law must be egregiously unrelated to a legitimate public interest to fail that test.

“Basically, when you use rational basis, laws are upheld,” Sally Frank, a Drake University Law School professor, has said.

After the state and federal Supreme Court rulings on abortion, Reynolds moved in August to end the injunction for the fetal heartbeat bill.

The Alliance Defending Freedom, an out-of-state conservative Christian legal advocacy group, is representing Reynolds in the court case.

Schandevel, one of the group’s attorneys, argued in the court hearing Friday that Iowa case law requires the “rational basis” test to be used in lieu of “strict scrutiny.”

Planned Parenthood of the Heartland, which successfully sued for the 2019 injunction and seeks to continue it, argues that the middle test of “undue burden” still applies in Iowa even though it was invalidated at the federal level.

The Iowa Supreme Court ruling this summer said “undue burden” was in effect, pending the U.S. Supreme Court ruling, and the state ruling failed to say what test should be applied post-Roe.

“How can a district court tell the Supreme Court … ‘I’m just going to presume you meant rational basis?’” District Judge Celene Gogerty said Friday. “I don’t have the authority to do that, do I?”

Gogerty oversaw the hearing and will rule on the governor’s motion within 60 days.

Planned Parenthood argues that court rules bar such an order to modify or vacate a final judgment because there is generally a one-year limit for those requests and because the rules don’t explicitly say that changes to law are a reason for such modifications.

Planned Parenthood, which is being represented by the American Civil Liberties Union, says the state should pass a new law if it wants to litigate the issue again.

“This is a draconian and inhumane law that bans abortion at the earliest stages before many people know that they are pregnant,” ACLU of Iowa Legal Director Rita Bettis Austen said Friday.

If allowed to go into effect, the 2018 state law would outlaw most abortions after six weeks of development — about the time when a fetal heartbeat can be detected. The law includes exceptions for rape, incest and to save the life of the pregnant patient.

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