For the sixth time in the past decade, an abortion-related case is pending before the Iowa Supreme Court.

The only certainty is that the court will issue some majority opinion in the latest iteration of Planned Parenthood of the Heartland v Reynolds. All seven justices participated in the April 11 oral arguments.

The law at issue, adopted during a special legislative session last July, is almost identical to the near-total abortion ban at the center of last year’s case. But after Justice Dana Oxley recused herself from the 2023 litigation, the other justices split 3-3, leaving a permanent injunction on the 2018 abortion ban in place.

In all likelihood, the Iowa Supreme Court will decide before the end of June whether to lift the temporary injunction on the new abortion ban. Normally, it’s not advisable to guess how any justice will rule following oral arguments. We can draw more inferences here, because all seven justices have written or joined opinions that are relevant to the current case.

This post is designed to help readers understand the legal context and key arguments for each side.

THE PATH TO THE SIXTH PPH CASE

Planned Parenthood of the Heartland has brought six lawsuits against the state of Iowa. Attorneys and justices used shorthand references to the earlier cases during last week’s hearing. To reduce confusion, here is a review of those cases and how current justices ruled on them.

PPH I, also known as PPH 2015: Planned Parenthood challenged an Iowa Board of Medicine rule banning the use of telemedicine for abortions. The Iowa Supreme Court unanimously found the rule unconstitutional because it posed an “undue burden” on women seeking to terminate pregnancies. Justices Edward Mansfield and Thomas Waterman joined the opinion, issued in June 2015.

PPH II, also known as PPH 2018: Planned Parenthood challenged a 72-hour waiting period for abortions, which Iowa lawmakers enacted in 2017 as part of a law banning almost all abortions after 20 weeks. (The 20-week ban remains in effect.) In a 5-2 decision issued in June 2018, the Iowa Supreme Court majority struck down the waiting period and held that the state constitution protects abortion as a fundamental right subject to strict scrutiny.

Justice Mansfield wrote the dissent in the 2018 case, joined by Justice Waterman. After examining the original understanding of the state constitutional provisions on due process and equal protection, they found no “right—let alone a fundamental right—to terminate a pregnancy.” The dissent noted, “Each side in the debate is motivated by a serious, legitimate concern: on the one hand, a woman’s ability to make decisions regarding her own body; on the other, human life.” It criticized the majority opinion as lacking that “sense of balance and perspective.”

PPH III, also known as PPH 2021: Planned Parenthood challenged a 2019 law that made abortion providers ineligible to receive federal grants for sex education, but included a carve-out for the UnityPoint health system (which also performs abortions in some locations). Justice Oxley wrote for a 6-1 majority in June 2021, finding the state had a rational basis to exclude Planned Parenthood from delivering sex ed programming to teenagers. The court also held that because “abortion providers have no constitutional right to perform abortions,” it’s not unconstitutional for the state to deny sex ed grants to organizations like Planned Parenthood. Chief Justice Susan Christensen and Justices Mansfield, Waterman, Matthew McDermott, and Christopher McDonald joined the majority opinion.

PPH IV, also known as PPH 2022: Planned Parenthood challenged a 2020 law requiring a 24-hour waiting period for abortions. By the time this case reached the Iowa Supreme Court, two of the five justices from the PPH 2018 majority had died, and two others had retired. Consequently, a 5-2 majority overturned the 2018 holding and declared the state constitution does not protect abortion as a fundamental right subject to strict scrutiny.

The June 2022 majority opinion, authored by Justice Mansfield, did not declare the waiting period constitutional but allowed the state to enforce the law while litigation proceeded at the District Court level. Justices Waterman and Oxley joined the opinion in its entirety, and Justices McDonald and McDermott joined most of the opinion.

The majority split over whether the court should establish a standard for legal review of abortion regulations. A plurality (Justices Mansfield, Waterman, and Oxley) left the undue burden standard in place and invited litigants to make their case about whether the court should use some kind of balancing test or adopt a less stringent rational basis standard. Rational basis is a low bar: the state would only need to show some legitimate interest (“protecting unborn life”) and a connection between that goal and the law’s provisions.

Justice McDermott (joined by McDonald) dissented from that part of the opinion. They argued the court should “emphatically reject—not recycle” the “moribund undue burden test” from the U.S. Supreme Court’s Casey opinion of 1992. They would have directed the lower court to apply the rational basis test to the waiting period.

Chief Justice Christensen dissented from most of PPH IV. She would not have reversed the 2018 abortion rights precedent and therefore would have found the waiting period unconstitutional.

About a week after the Iowa Supreme Court published its PPH IV decision, Reynolds asked the court to rehear the case in light of the U.S. Supreme Court’s Dobbs decision, which overturned Roe v Wade and Casey and declared abortion regulations subject to rational basis review. The Iowa justices declined the governor’s request.

PPH V, also known as PPH 2023: Days after the Iowa Supreme Court issued PPH IV, Reynolds moved to reinstate a 2018 law that would ban almost all abortions after embryonic or fetal cardiac activity could be detected (which often occurs around six weeks). Planned Parenthood and the Iowa City-based Emma Goldman Clinic had challenged the law, and a Polk County District Court permanently enjoined it in early 2019. Reynolds opted not to appeal at that time, because the Iowa Supreme Court would surely have upheld the ruling and found the misnamed “heartbeat” law unconstitutional.

The ACLU of Iowa and Planned Parenthood decided in August 2022 not to pursue their legal challenge to the 24-hour waiting period, in order to focus on fighting the 2018 law.

A Polk County District Court rejected the state’s arguments for reviving the abortion ban, and the state appealed. Justice Oxley recused herself from the case; when the lawsuit was filed in 2018, she was a partner at a Cedar Rapids law firm that represented the Emma Goldman Clinic.

The remaining justices split 3-3, which affirmed the lower court ruling “by operation of law.” Although justices typically do not write opinions when there is no majority holding, they did in this instance. Those non-binding opinions revealed sharp disagreements over how the court should approach abortion cases.

Justices McDonald, McDermott, and the newest Reynolds appointee, Justice David May, would have dissolved the injunction and allowed the 2018 ban to go into effect. McDonald’s opinion (joined by the others) argued that since the Iowa Constitution does not protect abortion as a fundamental right (per PPH 2022), Iowa’s high court should apply a rational basis standard.

The McDonald opinion further argued that PPH 2015 never identified any support for the undue burden standard under Iowa’s constitution. Rather, it asserted, PPH 2015 found the state constitutional right to abortion was “coextensive with the right available under the United States Constitution.” That right evaporated when the U.S. Supreme Court rejected Roe and Casey in Dobbs.

Justice Waterman (joined by Justice Mansfield and Chief Justice Christensen) disputed that the Dobbs decision changed the legal landscape in Iowa, where the high court has independent authority to interpret the state constitution. “The undue burden test balances the state’s interest in protecting unborn life and maternal health with a woman’s limited liberty interest in deciding whether to terminate an unwanted pregnancy. […] That is the current law in Iowa, not rational basis review.”

Since the state had conceded the 2018 ban would place an undue burden on Iowans seeking to terminate a pregnancy, the Waterman opinion would leave the permanent injunction in place.

The non-decision in PPH 2023 gave rise to the current case, which will be known as PPH VI or PPH 2024.

Reynolds called a special legislative session “with the sole purpose of enacting legislation that addresses abortion and protects unborn lives.” On July 11, 2023, Republican legislators approved House File 732, which mostly copied the 2018 ban. Within minutes, Reynolds announced plans to sign the bill on July 14.

Planned Parenthood and the Emma Goldman Clinic filed suit on July 12, and a Polk County District Court judge heard arguments on plaintiffs’ request for a temporary injunction on July 14, as Reynolds was signing the bill in front of a Christian conservative audience. House File 732 was in effect for just three days before the District Court blocked the state from enforcing it. The state appealed.

THE LEGAL ARGUMENTS FOR EACH SIDE

Those who enjoy delving into case documents can find all of the briefs filed with the Iowa Supreme Court on this page. This post will focus on points made by the state and the plaintiffs (represented by the ACLU of Iowa and Planned Parenthood Federation of America), not the sixteen amicus curiae briefs other entities submitted, hoping to influence the court’s decision.

The state: Court must apply rational basis review

The state’s core argument is that “because the Iowa Constitution does not protect a fundamental right to abortion, rational basis review applies.” The PPH 2022 majority opinion rejected the idea that abortion is a fundamental right. While a plurality of three justices did leave the undue burden standard in place “for now,” that is no longer the proper legal test.

For that reason, the state claims the Polk County District Court abused its discretion by “applying the wrong legal standard” to enjoin the law.

Established law says the rational basis test should apply. There is no reason to invent a special tier of scrutiny for laws protecting unborn life under the Iowa Constitution—especially when the U.S. Supreme Court that invented the Casey undue-burden test has abandoned it. And unborn lives have been lost during this injunction.

It is time for this Court to confirm that abortion policy belongs to the democratic process. Questions about protecting unborn life are best answered by the people and their elected representatives.

The state also maintains that the undue burden standard is unworkable. But even if it were not, “This Court has consistently applied strict scrutiny or rational basis review to substantive due process claims. There is no reason to deviate from that approach only for laws protecting the unborn.”

The state wants the high court to decide this issue now, rather than sending the case back to District Court. From the final reply brief: “The standard of review that applies to statutes that protect unborn life is a pure question of law. The record is therefore sufficient for the Court to decide the question. Petitioners identify no further factual development necessary for the Court to reach the legal issue.”

The state raised two other points purporting to show that the Iowa Supreme Court should dismiss the case. First, they argued that the organizations and physicians lack standing to bring the lawsuit, since they have not been injured by the abortion ban. The state claimed that under PPH 2021, “abortion providers have no constitutional right to perform abortions.” The state further argued that clinics don’t have any close relationship to women the law affects, and even if they did, those women “can sue on their own behalf” and don’t need a third party to bring the case.

The state’s logic wasn’t consistent with a long list of federal and state cases where clinics have challenged abortion restrictions on behalf of affected patients. Moreover, the PPH 2021 majority opinion expressly said its holding “does not implicate PPH’s ability to bring a derivative constitutional challenge asserting a woman’s rights.”

At one point during the April 11 hearing, Justice McDonald asked about the third-party standing argument. But most of the discussion revolved around other legal questions.

The state’s final point for rejecting the plaintiffs’ case was that the lawsuit was not “ripe” when filed, two days before Reynolds signed the bill. “Petitioners swung before the pitch. […] Litigants should not be permitted to challenge laws before they exist.” I assumed the governor wanted to send a political message by signing the abortion ban at The FAMiLY Leader’s event. In retrospect, it seems the July 11 news release announcing plans to sign the bill on July 14 was crafted to lay this legal trap.

None of the justices asked either side’s attorney about the ripeness argument, which suggests the case is unlikely to turn on that point.

The plaintiffs: District court didn’t err, abortion bans warrant higher scrutiny

The plaintiffs’ brief hammers a few points home. First, this proceeding is an interlocutory appeal. “At this preliminary stage, the only issue before this Court is whether the district court erred by granting Petitioners’ request for a temporary injunction.”

The plaintiffs say the District Court “did not abuse its discretion.” Rather, it “faithfully applied” the plurality holding in PPH 2022. Although Justice Waterman’s opinion in PPH 2023 lacks the force of precedent (since there was no majority holding), it “was joined by Justice Mansfield, the author of the PPH 2022 plurality opinion”—another sign that the PPH 2022 plurality “meant to leave the undue burden standard in place.”

According to the plaintiffs, “An intermediate level of scrutiny is appropriate in the abortion context because of the importance of balancing the different interests at stake.” But if the Iowa Supreme Court chooses to reconsider the undue burden standard, “it is premature to do so in this interlocutory appeal.” Remanding the case to lower court would allow “the parties to develop a complete, fulsome record before this Court changes a standard governing Iowans’ constitutional rights.”

The District Court found plaintiffs were likely to succeed on the merits of their due process claim but did not fully analyze their claim under the Article I, Section 1 of the Iowa Constitution, commonly known as the “inalienable rights clause.”

As for the state’s other arguments, plaintiffs said “longstanding precedents of both the U.S. Supreme Court and this Court clearly establish that abortion providers have third-party standing to sue” on behalf of patients. Moreover, “Petitioners have suffered an injury-in-fact because the Six-Week Ban threatens them with the revocation of their medical licenses and fines of up to ten thousand dollars for providing health care.”

Regarding the timing of the lawsuit, “the district court correctly held that Petitioners’ claims are ripe because they present an actual, present controversy.”

EIGHT KEY QUESTIONS FROM THE ORAL ARGUMENTS

Solicitor General Eric Wessan and Peter Im, the Planned Parenthood Federation of America attorney representing the plaintiffs before the high court, stayed relentlessly on message during the oral arguments. Here’s the official video. Wessan was up first and last, because the state was the party appealing the lower court ruling.

Incidentally, Attorney General Brenna Bird attended the April 11 hearing, but Reynolds was not present. That was a change from last year, when in an unprecedented flex, the governor walked through the justices’ private office area before sitting in the front row for the PPH 2023 oral arguments.

Many readers have asked how I expect the court to rule. I would not venture to guess where Justice Oxley will land, but she may well be part of a 4-3 majority opinion. Based on other justices’ comments and questions, it appears that the 3-3 split from PPH 2023 may be repeated.

Justices asked about many angles of the case. The following questions struck me as most significant.

What is the correct standard of review for abortion regulations?

Wessan hammered home his contention that justices have only two options: the strict scrutiny standard (already rejected by the PPH 2022 majority) or rational basis. He said the PPH 2022 plurality was correct to say the undue burden standard from Casey applied “for now.” But that’s not the case after Dobbs.

Wessan asserted “it makes sense” to use strict scrutiny for laws limiting a fundamental right. “But this court has never before recognized a quasi-fundamental or a fundamental-ish right. It’s a binary choice.”

Justice Mansfield questioned the idea of a “binary choice,” positing there may be room for a third option: intermediate scrutiny. Chief Justice Christensen wondered how the law would fare using the undue burden standard. Wessan acknowledged the law would fail that test because it restricts abortion before viability.

Justice Waterman asked Wessan to explain the interests on the other side of the ledger: “In the view of the state, what right does a woman have to control her own health care decisions, including terminating a pregnancy. Any right?”

The state’s attorney replied that unenumerated rights (that is, those not expressly named in the constitution but protected by substantive due process jurisprudence) “are all important, but they’re not all fundamental.” He kept returning to the idea that since the Iowa Constitution doesn’t protect abortion as a fundamental right, the justices have no choice but to apply rational basis.

Im began his presentation by reminding the justices that the state was appealing a temporary injunction, “which this court reviews for abuse of discretion.” PPH 2022 is the controlling precedent, and its plurality “clearly stated that undue burden ‘remains the governing standard.’ The district court got it right by applying that standard and certainly did not abuse its discretion by committing legal error.”

The plaintiffs’ attorney rejected the state’s binary framework. The PPH 2022 plurality opinion did not find that since abortion is not a fundamental right subject to strict scrutiny, the court must use rational basis review. Im noted, “if the plurality had believed that there was no such thing as an intermediate level of scrutiny, then it would not have lowered the standard to undue burden.”

Im observed that even as the PPH 2022 plurality overturned the abortion rights precedent from 2018, those three justices wrote, “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.’”

“That’s what’s at stake in this case,” Im told the court. “It’s Iowans’ ability to make decisions, private and personal medical decisions, to exercise bodily autonomy, and to decide when and whether to have children. Rational basis is simply inconsistent with the importance of these rights, and undue burden is the correct standard.”

What do past Iowa Supreme Court decisions say about the standard for review?

Wessan repeatedly cited cases in which the Iowa Supreme Court had applied rational basis review, either because the challenged law did not implicate a fundamental right, or did not “directly and substantially” interfere with that right. Those included State v Seering (2005) and McQuistion v. City of Clinton (2015). Wessan said he wasn’t able to find a substantive due process case where the Iowa Supreme Court had used intermediate scrutiny.

“Before this court is a straightforward question,” Wessan asserted. Since the Iowa Constitution does not protect abortion as a fundamental right, the proper standard of review is rational basis.

Regarding the plaintiffs’ claim that the abortion ban interferes with women’s inalienable rights, Wessan referred to cases including Garrison v New Fashion Pork from 2022, in which the court held that Article I, Section 1 challenges are subject to rational basis review.

Im disagreed that “there is no fundamental right” at issue in this case. Although the PPH 2022 majority held abortion regulations are not subject to strict scrutiny, “autonomy and dominion over one’s own body, that runs through the Iowa constitution. That is fundamental.”

Justice McDonald pressed Im to name cases in which the Iowa Supreme Court had applied an intermediate level of scrutiny when it wasn’t a fundamental right.

Although the court hasn’t applied intermediate scrutiny in a substantive due process context, Im highlighted the important interests on both sides of this issue. Also, the PPH 2022 plurality recognized that parenthood is a life-altering obligation that falls unevenly on women. That’s why rational basis isn’t appropriate, he said.

McDonald interrupted to ask again: outside of the abortion context, “What is the case where we have applied an intermediate level of scrutiny where there is no fundamental right that has been recognized?” He said the plaintiffs’ brief had relied on some cases involving voting rights and free speech, which are fundamental rights.

Im noted the court has applied intermediate scrutiny to other cases, including Varnum v Brien (the 2009 marriage equality decision that centered on an equal protection analysis).

Could Iowa’s new abortion ban survive rational basis review?

The state is operating on the assumption that the abortion ban would survive rational basis review. Wessan told the justices other state courts had upheld what he calls “heartbeat” laws using that standard.

Not every justice was ready to accept that premise.

Justice Waterman wondered, “Under rational basis review, could the state outlaw abortion altogether, instead of allowing a six-week window?” Wessan quoted from a dissenting U.S. Supreme Court opinion by William Rehnquist, which said an abortion ban with no exception to save a mother’s life would not survive rational basis review. He emphasized that there is no circumstance under Iowa’s law where an ectopic pregnancy could not be treated through an abortion.

Justice Mansfield wanted to know whether the legislature could eliminate the exceptions for rape and incest. Wessan said some such laws have been found to survive rational basis review, but that’s not relevant for Iowa’s statute.

Chief Justice Christensen zeroed in on the exceptions. What evidence supports a 45-day window for reporting rape, but 140 days for incest? Aren’t such reporting requirements “more or less shutting the door” on abortions in cases of rape or incest? She noted that anyone who has prosecuted such crimes or worked in that field knows those numbers are “unrealistic.”

Wessan contended that the woman wouldn’t need to file a report with law enforcement. He said it’s not “unreasonable” to expect a woman seeking an abortion to tell her doctor she was a victim of rape or incest.

The chief justice also questioned the disparity between 45 days and 140 days, and asked whether it mattered if the legislature wrote exceptions into the law with almost no opportunity to use them.

Wessan said the most important exception is the life of the mother. The rape and incest exceptions are important, but looking specifically at how many days apply to one or the other “risks having the court substitute its policy preferences for the policy preferences of the legislature.”

For Im, such questions illustrated why the justices should remand the case. For Iowa’s high court, rational basis review is not a “toothless standard.” The state concedes some abortion bans might not withstand this level of scrutiny. Im wasn’t sure the requirement to report a rape within 45 days would satisfy rational basis, since the time limit doesn’t give women ample opportunity to exercise their rights. The plaintiffs could develop such arguments in lower court, he said.

The chief justice then noted that the incest exception requires victims to report the incident to law enforcement or health care professionals. Telling your mom would not count. Im seemed to agree, adding, “We certainly could develop further facts on that” if the case were sent back to lower court.

The Iowa Board of Medicine’s administrative rules could give rise to many more potential arguments against a rational basis underlying House File 732. Bleeding Heartland explored some of those problems here and here. To note just a few examples:

• A child raped by her stepfather would have 140 days to report the incident and obtain an abortion under the incest exception. But if the pregnancy resulted from abuse by her single mother’s intimate partner, or any other non-related adult (such as a neighbor or coach), the same child would have to report the incident within 45 days to qualify for the rape exception.
• Wessan conceded that abortion bans must include exceptions to protect the life of the mother. Yet the Board of Medicine’s rules do not specify which life-threatening conditions may justify an abortion. Doctors could lose their license if they guessed wrong, or women could die if their doctors were unwilling to roll the dice on terminating a pregnancy.
• Existing Iowa Code language on medical emergencies in the abortion context precludes any consideration of “psychological conditions.” How does that framework protect the right to abortion to save a mother’s life, when suicide “is a leading cause of maternal mortality” in the U.S.?
• The administrative rules on the “fetal abnormality” exception are vague and inconsistent with standard medical practice. In addition, the exception for conditions “incompatible with life” does not apply beyond the 20th week, even though non-survivable medical problems are often diagnosed after that point.
• The law requires physicians to use a type of abdominal ultrasound that is not based on accepted medical standards of care.

During Wessan’s rebuttal time, Justice McDonald returned to the topic of exceptions, asking whether parts of the abortion law could be challenged individually, while the “overall framework” of the statute survived. The state’s attorney agreed: “Often there are lawful applications of a challenged law,” even if a court later finds that some parts of it “do not work.”

Is the undue burden standard unworkable?

Jurists on both sides of the abortion issue—from the Iowa Supreme Court’s PPH 2018 majority to the U.S. Supreme Court’s Dobbs majority—have criticized the undue burden standard as “unworkable.”

Justice Oxley asked Im to explain what evidence plaintiffs might put in the record to address this claim. Im mentioned a range of burdens, such as the potential effect of abortion bans on fertility treatments, or factual evidence about the Iowa Board of Medicine rules, which had not been promulgated when Reynolds signed the abortion ban but have since been adopted.

In response to a question from Justice McDonald about that part of the PPH 2018 holding, Im said PPH 2022 repealed PPH 2018 and held that for now, undue burden is the standard. He added that as with other legal standards, there may be “borderline cases” where judges of good conscience can disagree. That’s how the common law is developed.

Should the case be sent back to District Court?

Im repeatedly urged justices to remand the case to lower court for further development of a factual record and legal arguments. The state would prefer for the Supreme Court to uphold the abortion ban, or at least send it back with instructions to use rational basis review.

The Polk County District Court’s temporary injunction held plaintiffs are likely to succeed on their due process claim; the state disputes that.

Justice Oxley asked Wessan a hypothetical question: if the Supreme Court agrees with the state about the due process claim, what should justices do with the plaintiffs’ challenges under equal protection and inalienable rights? Wessan argued that rational basis should apply to all claims.

During Wessan’s rebuttal, Justice Oxley asked, if we agree that rational basis should be the standard of review, should we decide that for this law, or do we need to send it back for the district court to apply the standard? Wessan said every court that used rational basis has upheld similar laws. Iowa “stood alone” when the PPH 2018 court found an abortion right in the state constitution’s due process clause. There’s no reason for Iowa to stand alone today.

That said, Wessan indicated the state would happily argue this in District Court, if the Supreme Court decides to remand. He asserted that the lower court would be bound by the Garrison test (rational basis review for all claims under the inalienable rights clause) and the majority holding in PPH 2022 that abortion regulations do not pose an equal protection problem.

Justice Oxley had a follow-up question: shouldn’t Planned Parenthood get the opportunity to argue that the standard should be changed?

How important is the 1998 amendment adding “and women” to the Iowa Constitution?

In 1998, Iowa voters approved an amendment adding “and women” to Article I Section 1, which now reads:

All men and women are, by nature, free and equal, and have certain inalienable rights – among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness.

The change is an important part of the plaintiffs’ case, because while the rest of that section was adopted in the 1850s, voters approved “and women” in a different era.

When Justice McDermott asked the solicitor general whether the 1998 amendment should “have any bearing on our analysis,” Wessan cited Iowa’s Gacke case from 2004 and Garrison from 2022. Those cases were Article I, Section 1 claims against laws that gave livestock producers immunity from nuisance suits. The court applied rational basis review.

Just McDermott asked Im to identify words in Article I, Section 1 that establish a right to an abortion. The plaintiffs’ attorney mentioned “free and equal,” inalienable rights including liberty, and pursuing safety. Im said the Minnesota Supreme Court has found a right to abortion running through several articles of that state’s constitution.

Similarly, when Justice McDermott pointed out that PPH 2022 had rejected the argument that abortion regulations are an equal protection problem, Im responded, “The equality of women in our society doesn’t just find its home in Article I, Section 6 [the equal protection clause]. It’s also implicated by Article I, Section 1.”

Justice McDermott wanted to know whether plaintiffs are asking the court to overturn Garrison. Im said they aren’t asking for that. This court has not looked at the 1998 constitutional amendment, which “has to mean something.”

In response to questions Justices Waterman and Mansfield raised about the 1998 amendment, Im said “it’s important to acknowledge the unequal burden that this would have on women.” PPH 2022 rejected equal protection clause analysis because women and men aren’t similarly situated in their ability to get pregnant. “But the inalienable rights clause does not just guarantee liberty and safety to women when they’re similarly situated to men. It guarantees those rights full stop.” Plaintiffs intend to develop those arguments in District Court.

Justice Waterman wanted to know whether the court would have to overrule Garrison to do that. Im said no because the 1998 amendment expressly added women to the section. Alternatively, the court could carve out an exception to Garrison.

Justice Mansfield pointed out that Iowans voted down a different version of the amendment in 1992. That amendment would have said neither the state nor any of its political subdivisions shall on the basis of gender deny or restrict the equality of rights under the law. Should the court make something of the fact that the 1998 amendment simply added the words “and women”?

Im noted that Casey was the law as of 1998, and the District Court never ruled on the inalienable rights claims in this lawsuit. For those reasons, the Supreme Court should remand for important arguments to be developed.

Wessan disputed any basis for a “carve out” to existing case law, which applies rational basis review to all Article I, Section 1 claims.

How important is Iowa’s history of abortion regulations?

Justice May asked only one question during the hearing: If the court were to develop a new standard, should justices consider Iowa’s history and how abortion was regulated, going back to the founding?

Im replied that in the 19th century, women were not equal citizens. “And this court does not use history as a trump card. It didn’t do so in Varnum,” the marriage equality case.

The 1998 amendment is important in this context, Im continued. When it was adopted, Roe v Wade and Casey were well-established law, and everyone knew women had the right to terminate a pregnancy before viability.

Justice Mansfield posed a hypothetical to the state’s attorney. In the Iowa codes of 1851 and 1860, it was a crime for people of the opposite sex to cohabit without being married. Could today’s legislature ban unmarried people from cohabiting? Wessan wasn’t sure; likely not unless there was some rational basis. But this isn’t that situation, he added, because “we have important values on all sides.”

Shouldn’t the court defer to elected representatives?

Justice McDonald asked Im, if we reject some of the historical record because women weren’t equal citizens at the founding, why not defer to the current democratic majority, which includes women? He commented that a woman signed this law, and a woman (Attorney General Bird) is defending it.

Im pointed out, “It is emphatically the role of this court to say what the constitution means.” That role provides a “vital check” on government encroachment on individual rights.

Chief Justice Christensen also wanted to know what deference justices should give the legislature, which passed this law just last summer. Im said deference is most important in terms of policy. But there’s no “political questions” doctrine when it comes to individual rights. The court doesn’t need to defer to the legislature when it rides roughshod over bodily autonomy.

“Pre-viability abortion has been legal in Iowa for the last 50 years,” Im continued. “All we ask is that this court leave that status quo in place pending a final judgment at the District Court.”