Bill from White Plains is an Iowa attorney with a specific interest in constitutional law and civil liberties.

Who’s more important: 51 percent of the populace of Iowa or, Iowa’s Republican-controlled government?

That is the question raised by the motion a partisan think tank filed in Polk County District Court on August 11. The Kirkwood Institute and the Alliance Defending Freedom are representing Governor Kim Reynolds and the Iowa Board of Medicine, after Iowa Attorney General Tom Miller declined to lead the state’s effort to reinstate a near-total abortion ban.

A news release from the governor’s office distributed the court filing, calling for the dissolution of a permanent injunction on the enforcement of Iowa’s so-called “fetal heartbeat” law, codified as Iowa Code § 146C.2. The law would prohibit abortion after the detection of a fetal heartbeat through use of an abdominal ultrasound device, except in cases of “medical emergency” or “medical necessity,” which include rape, incest, or danger to the mother’s health. It would outlaw more than 98 percent of abortions in Iowa, almost all terminations occurring after about six weeks of pregnancy.

In January 2019, Polk County District Court Judge Michael Huppert issued a permanent injunction on the enforcement of that law, which was enacted eight months earlier. Huppert’s ruling was based on the most current Iowa law on abortion legislation at the time: the U.S. Supreme Court’s 1973 ruling in Roe v. Wade, and the Iowa Supreme Court’s 2018 ruling in Planned Parenthood v. Kim Reynolds, et. al.

Under those precedents, women had a fundamental constitutional right to choose to have an abortion within certain time frames. Additionally, the U.S. Supreme Court had determined in the 1992 Planned Parenthood of Southeastern Pennsylvania v. Casey decision that the correct analysis for determining whether an abortion law was unconstitutional under the U.S. Constitution’s Fourteenth Amendment was the “undue burden” test.

In 2020, the Iowa legislature approved and Reynolds signed a law imposing a 24-hour waiting period for abortions in 2020. That provision was challenged in Johnson County District Court and enjoined in 2021. District Court Judge Mitchell Turner’s injunction relied upon the same abortion jurisprudence that informed Judge Huppert’s 2019 injunction.

The state appealed Turner’s decision. Without going into detail about the Johnson County case, (you can read about that in a prior Bleeding Heartland entry), it must suffice that the Polk County “motion to dissolve” circulated by the governor’s office on August 11 bases its arguments on Iowa Supreme Court’s ruling from this June, which only addressed the Johnson County injunction on the 24-hour waiting period statute. 

Because of this, while my subject is Polk County “fetal heartbeat” injunction, which the governor did not appeal in 2019, some references to the Johnson County case are unavoidable below.

The 2018 Iowa Supreme Court majority opinion (which has come to be referred to as “PPH II”) determined that while it uses precedents like Casey as guides, it can, and should, independently consider violations of Iowa’s constitution, when appropriate. Under PPH II, any restrictions on the fundamental right to abortion were subject to strict scrutiny.

Preliminarily, the matter of disposing of injunctions

The state’s motion is a bit sophomoric in its tone and presentation. It’s written in what appears to be 16 pt (or higher) font and it reads like a breathless, euphoric scream of, “I gotcha!” When it comes to the legal analysis of what it takes to dispose of an injunction, it attempts to stick a thumb in Judge Huppert’s eye and say, “Checkmate! You have to ‘dissolve’ the injunction!”

With all humility, I say to its author and my fellow student of the law, Alan R. Ostergren, “slow down, Charlie Brown.”

The motion quotes a 1995 Iowa Supreme Court case, Bear v. Iowa District Court of Tama County, for the proposition that “the court which rendered [an] injunction may modify or vacate the injunction if, over time, there has been a substantial change in the facts or law.”

Fair enough. However, Bear did not rise or fall on that language. Instead, that language is found as part of a string of case citations regarding the duration of permanent injunctions, generally. More specifically, the quotation is a characterization of the legal holding in one of those other cases.

The actual case being cited is Helmkamp v. Clark Ready Mix Co., decided in 1974. Helmkamp was a nuisance case, wherein neighbors to a ready-mix concrete company obtained an injunction that closed down the concrete plant. Over a fairly short time period, the concrete company cleaned up its operation and moved to vacate the injunction. It demonstrated not only that it had made substantial changes that addressed all of the neighbors’ concerns, but that during the time the injunction was in force, it remained closed and did not violate the terms of the injunction.

The district court vacated the injunction and the neighbors appealed, claiming the district court didn’t have the power to do so.

In its reasoning, the Iowa Supreme Court stated,

Whether the district court itself had originally enjoined or enjoined under our mandate, the question relates to the power of a court to modify or vacate a “permanent” injunction on changed conditions in the future. The law is clear that a court may so modify or vacate an injunction, otherwise the party restrained might be held in bondage of a court order no longer having a factual basis. (emphasis added)

I emphasize factual basis here because the governor’s brief quotes Bear for the proposition that an injunction can be lifted based on a substantial change in the facts “or law.” Bear doesn’t hold that, and neither does Helmkamp. Both cases involved facts on the ground, not a change in the law.

It’s axiomatic that if the law no longer applies, the injunction is no longer valid. It would have been prudent, and honest, for Mr. Ostergren to simply state that. But he didn’t. Instead, he cited several federal cases from other jurisdictions which I am not going to research and review because it’s not my job (or inclination) to do so. I’ll just leave it at this: if he misled with Bear, he may have misled with the others.

He picks a winner with his citation to a U.S. Supreme Court decision that actually overruled a case on which an injunction had been granted some ten years before, because the law had evolved during that time period. That case, Agostini v. Felton, decided in 1997, overruled a 1985 Supreme Court case called, Aguilar v. Felton.

Agostini, however, isn’t determinative with respect to Iowa’s “fetal heartbeat” law for one simple reason: in its recent majority opinion reversing PPH II, the Iowa Supreme Court has, in legal parlance, “left for another day” the matter of which level of scrutiny the district court should apply to its constitutional analysis of a law requiring a 24-hour waiting period for abortion.

I will provide the exact quote later in this piece. For now, it is sufficient to say that the Iowa Supreme Court did not end the litigation. Instead, it sent the case back to Johnson County District Court, with instructions to set a briefing schedule and hear arguments from the litigants on the matter of which level of scrutiny is applicable. (Those briefs will not be submitted, because Planned Parenthood and the ACLU of Iowa decided last week to end their legal challenge to the 24-hour waiting period.)

So, not so fast, Skippy.

Levels of scrutiny in constitutional cases

I have written previously about the levels of scrutiny applied by courts when analyzing federal and state legislation that invokes the equal protection clauses of respective constitutions (in the U.S. Constitution, the Fourteenth, Fifth, and at times First Amendments; in the Iowa Constitution, Article I, Sections 6 and 9). There are three levels: strict scrutiny, intermediate scrutiny, and rational basis scrutiny.

Strict scrutiny is the highest bar for the government to clear. It requires that a law affecting “fundamental rights” like the free expression of religion, gun rights, the right to marry, and protection from racial discrimination, involve a “compelling” state interest, and be “narrowly tailored” to meet that interest.

Intermediate scrutiny has historically been invoked in cases involving discrimination based on gender, or the fact a person is born of unwed parents. But more recently, it has been applied in what has come to be referred to as “heightened” or “heightened intermediate” scrutiny for hybrid cases involving sexual orientation, gender identity, and abortion. Those cases aren’t exactly consistent with the gender discrimination precedents and aren’t exactly consistent with the cases involving the fundamental right to marry.

In the 2009 Varnum v Brien decision, the Iowa Supreme Court applied “heightened scrutiny” when striking down a law prohibiting gay marriage. It built on that jurisprudence by ruling that birth record forms discriminated against gay and lesbian parents when they required the listing of the name of a “father” and a “mother.” Intermediate scrutiny requires that the government demonstrate an “important” interest in the discriminatory law that is “substantially related” to that interest.

Finally, there is “rational basis” scrutiny – the lowest form of scrutiny. Here, the burden is not on the government to show the significance of its interest in a law. Rather, it is the person challenging the burden to demonstrate that the law or regulationhas no legitimate interest whatsoever or, that there is no rational relationship between the law and any legitimate interest. The paradigm case of rational basis scrutiny is one that discriminates against those who are financially impoverished. Against them, in a nutshell, the government can discriminate all it wants.

But . . . .

There is this legal animal called “undue burden” analysis, which, like intermediate scrutiny and heightened scrutiny, falls somewhere between strict scrutiny and rational basis scrutiny. Based on my time-constrained research over the past day and a half, unlike intermediate and heightened scrutiny, “undue burden” analysis does not require the government to demonstrate any certain level of legal significance to the law (not “compelling” state interest or, “substantial” or “important” state interest or even “nominal” state interest).

Rather, it requires the person challenging the law to demonstrate that the law is too burdensome on his/her/their or its (corporations are people under the law) fundamental constitutional rights.

From the sources I have reviewed since the governor made the “motion to dissolve” public on August 11, the key requirement in “undue burden” cases is whether the right affected is “fundamental,” which means “protected by the Constitution.”

Why it matters whether “undue burden” relates to “fundamental rights”

This is extremely significant. The case that overturned Roe v. Wade (called, Dobbs v. Jackson Women’s’ Health Organization, et. al.), held that abortion is not a fundamental right. Likewise, the Iowa Supreme Court’s latest ruling on Planned Parenthood of the Heartland’s challenges to laws our governor has signed (referred to as “PPH IV”) declared that abortion is not a fundamental right under Iowa’s constitution. The Iowa Supreme Court issued the PPH IV decision on June 17, a week before the U.S. Supreme Court released Dobbs.

Justice Edward Mansfield, who wrote the dissenting opinion in PPH II (the 2018 case holding that women have a fundamental right to an abortion under the Iowa constitution), wrote the majority opinion in PPH IV. In effect, he overruled the precedent by repackaging his PPH II dissent.

One would conclude, based on the background I have just provided, that this means Iowa’s “fetal heartbeat” law doesn’t qualify for “undue burden” analysis. Indeed, that is the crux of the governor’s “motion to dissolve.” (By the way, injunctions are not “dissolved”—even though Bear unfortunately uses that term—they are lifted or terminated.)

Justice Matthew McDermott, joined by Justice Christopher McDonald filed a special concurrence in the Iowa Supreme Court’s recent abortion case. They joined most of the 5-2 majority opinion that reversed the PPH II precent. But they would have instructed Iowa courts to use rational basis analysis when evaluating abortion restrictions.

In a section of the majority opinion endorsed by three justices, Mansfield didn’t apply rational basis, because the parties hadn’t provided briefs, or argued the level of scrutiny before the injunction was appealed. Rather, near the end of his majority opinion (pages 65-66), he wrote,

The State does not take a position on whether the undue burden test or the rational basis test should replace PPH II’s fundamental rights/strict scrutiny standard. […]

It is true that an amicus curiae asks us to specifically hold that the 24-hour waiting period is subject to rational basis review. But normally we do not allow amici curiae to raise new issues. […] Planned Parenthood has not briefed the issue, so there is no adversarial briefing. Also, because of the substantive differences between the undue burden test and the rational basis test, deciding this issue could result in granting the State more relief than it requested on appeal. It is one thing to consider an additional argument, another to grant additional relief not sought by the appellant.

(Amicus curiae, or amici curiae, or simply, “amici” are not parties to the action. Rather, they are interested outsiders who offer additional arguments, or arguments made by the parties, from a different perspective, who have been granted permission by the court to participate as “friends of the court.”)

The influence of the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization

Justice Mansfield continued, closing out the opinion as follows:

Lastly, the United States Supreme Court is expected to decide an important abortion case this term. See Dobbs, 141 S. Ct. 2619. That case could decide whether the undue burden test continues to govern federal constitutional analysis of abortion rights. We expect the opinions in that case will impart a great deal of wisdom we do not have today. Although we take pride in our independent interpretation of the Iowa Constitution, often our independent interpretations draw on and contain exhaustive discussions of both majority and dissenting opinions of the United States Supreme Court.

We do not prejudge the position our court will take. We agree with the PPH II majority that “[a]utonomy and dominion over one’s body go to the very heart of what it means to be free.”[PPH II] (majority opinion). We also agree that “being a parent is a life-altering obligation that falls unevenly on women in our society.” [PPH II] at 249 (Mansfield, J., dissenting). Yet, we must disapprove of PPH II’s legal formulation that insufficiently recognizes that future human lives are at stake—and we must disagree with the views of today’s dissent that the State has no legitimate interest in this area.

Taken at its word, this ending says that the District Court is going to take this case on remand and is going to require the parties to brief the issue of the appropriate legal analysis. Regardless of how the lower court rules, the Iowa Supreme Court invites the losing party to appeal, and the Iowa Supreme Court will look, with fresh eyes, at the case – with more clarity provided by Dobbs.

But that’s sophistry to some extent. Like all of us, Iowa Supreme Court had more than a hint of what analysis the U.S. Supreme Court was going to apply in Dobbs, because a very well-developed draft of that opinion had been leaked to the press in early May. And the draft, like the ultimate opinion, discarded the undue burden standard used in Casey (and in fact overruled the whole of Casey), and applied rational basis review. Under rational basis review, Dobbs opened the door to pretty much any restriction on abortion that wasn’t . . . stupid and overindulgent.

Prior to Dobbs, stupid and overindulgent state abortion restrictions were ones that didn’t allow exceptions for rape, incest, fetal abnormality or the mother’s health. Iowa’s fetal heartbeat law provides those exceptions, along with a catch-all referred to as, “incomplete miscarriages.”

Also prior to Dobbs, the last remaining member of the what has become known in Iowa legal circles as “the Cady court” (after Mark Cady, who wrote the unanimous opinion finding a fundamental state constitutional right to gay marriage), was still a member of the Iowa Supreme Court. But Justice Brent Appel retired on July 13, the day he hit the mandatory retirement age for Iowa justices (72 years old).

Reynolds recently appointed Iowa Court of Appeals Judge David May to replace Appel. Some legal observers see May as an overly ambitious, glad-handing sycophant to whomever can advance his career. In other words, the anticipation is that Justice May will not be the lone dissenting vote on many consequential opinions written by this court, which Mansfield is philosophically leading. Instead, many of my colleagues anticipate that he will toe the party line.

Closing thoughts

It is critical to note that Mansfield and Thomas Waterman became justices because after the Varnum decision, conservative groups led by professional flunkies like The Family Leader manipulated enough Iowans to vote out three of the Cady court’s justices (Chief Justice Marsha Ternus, and Justices Michael Streit and David Baker) in the 2010 retention elections.

Newly-elected Governor Terry Branstad appointed Mansfield, Waterman, and Bruce Zager in early 2011.

Zager (who joined the PPH II majority opinion finding a fundamental right to abortion) retired from the court in July 2018. Reynolds appointed current Chief Justice Susan Christensen as an associate justice to replace him.

Justice Daryl Hecht of the Cady court died after a long illness in 2019. Reynolds appointed Justice McDonald to replace him.

Chief Justice Cady unexpectedly died in November 2019. Reynolds appointed Justice Dana Oxley to replace him in early 2020

Justice David Wiggins retired from the court in 2020, and Reynolds named McDermott to replace him.

So then, with the exception of Mansfield and Waterman, every other current Iowa Supreme Court justice is a Reynolds appointee. And the lot of them were, at the time they were nominated, all registered Republicans.

Without treading on Bleeding Heartland’s toes, I think it is fair to say that Reynolds has established herself as a governor with a mandate to destroy damned near all civil liberties in Iowa, save for the right to own a gun, and the new “right” not to wear a mask or get inoculated when a pandemic strikes the state (and the country, and the whole world).

She has done so with no discernible grounding, save for following the direction of ultra conservative think tanks in Washington, D.C. And, it seems to me like she follows those dictates because she is incapable of an original thought.

And – again my observation – if she can get a handful of Iowans to say nice things about her abolition of all that is in Iowa’s state motto (“Our liberties we prize and our rights we will maintain”), that is nice, but not at all necessary. As an incumbent Republican in the governor’s seat in Iowa, she could probably stand in the middle of the Iowa State Fair’s main concourse and shoot people, and the majority of voters would still re-elect her.

In short, the current Iowa Supreme Court has become a reactionary court. Its members appear to have been appointed with a mandate to tear down all individual liberties that members of the Cady court once protected – and many, many more.

In reading the “motion to dissolve” that the governor circulated on August 11, the politics are very clear. The motion maintains the legal, politically palatable, but realistically vacuous, conflict between a woman’s right to bodily autonomy and integrity, and “advancing fetal life.”

If you take nothing else away from this discussion, I hope that I have demonstrated that these are not the competing interests.

Instead, the competing interests involved here are these: a woman’s right to bodily autonomy and integrity (and a woman’s agency in sexual relations) versus the power of the state to eliminate those rights and assign itself the role of in loco parentis (meaning, “in place of one’s parent” – the role given to elementary school teachers over little children).

In 2022, any law in Iowa or elsewhere that gives, or lets the government pursue, the power to parent adult women is, stupid and wildly overindulgent.