Three weeks after the Iowa Supreme Court ruled that the state should be able to enforce a near-total abortion ban, the law is still on hold.
Polk County District Court Judge Jeffrey Farrell said during a July 19 virtual conference that the Iowa Supreme Court had not yet issued an order transferring the case back to District Court. That needs to happen before the judge can dissolve a temporary injunction blocking enforcement of the ban (House File 732).
Under Iowa’s rules of civil procedure, the high court cannot transfer a case to lower court within the first 21 days after a Supreme Court ruling (that period ends on July 19), or “while a properly filed petition for rehearing” is pending. The plaintiffs in this case—Planned Parenthood of the Heartland, the Emma Goldman Clinic, and Dr. Sarah Traxler—filed a petition for rehearing on July 11. They provided three reasons the Iowa Supreme Court majority should have left the injunction in place while litigation proceeds.
It’s not clear when the Supreme Court will accept or reject the petition for rehearing. The court rarely grants such requests and rarely makes significant changes to decisions already published.
PLAINTIFFS SEEK NOTICE BEFORE ABORTION BAN IS ENFORCED
During the July 19 conference, attorney Peter Im of Planned Parenthood Federation of America expressed the plaintiffs’ concerns about timing, assuming the Iowa Supreme Court does order the lower court to dissolve the injunction. Lack of notice about when the state will begin to enforce the law could cause medical issues for patients, he noted. That could affect not only Planned Parenthood facilities and the Emma Goldman Clinic, but also hospitals and health care providers throughout the state, he said.
Many patients who had planned to continue their pregnancy develop conditions that are typically treated through abortion (such as premature rupture of membranes), or discover that the fetus will never be able to survive outside the womb. Neither House File 732 nor the Iowa Board of Medicine’s administrative rules spell out which situations would justify an abortion under the “medical emergency” and “fetal abnormality” exceptions.
Im also noted that if an abortion ban took effect with no warning, it could complicate care for someone who came to the emergency room over a weekend, or a victim of sexual assault who was in the middle of a two-day procedure. Medication abortions, the most common method for terminating a pregnancy, may take place over more than one day.
Im said the plaintiffs are seeking clarity on when the dissolution would become effective; for instance, by 9:00 AM on a certain date, with a few business days for affected Iowans to plan.
Speaking for the state, Solicitor General Eric Wessan asked for the District Court to dissolve the injunction as soon as practicable once the Iowa Supreme Court transfers jurisdiction. Asked whether the state would object to the court giving some notice, Wessan said the Iowa Supreme Court had explained what the law is, and people are responsible for actions that might implicate the law.
Judge Farrell indicated that he may not be informed right away once the Supreme Court transfers the case. He added he didn’t think the justices would expect him to “drop everything” and immediately dissolve the temporary injunction on the abortion ban. While he didn’t make any final determination during the hearing, he characterized the plaintiffs’ request as “reasonable” and said he is inclined to give some notice about when the state will be able to enforce the law.
PROSPECTS FOR TRIAL UNCERTAIN
Since the Iowa Supreme Court did not rule on the merits of the plaintiffs’ challenge to House File 732, further litigation is likely once the case goes back to lower court. The four-justice majority rejected the argument that the abortion ban violates Iowans’ substantive due process rights, but did not rule on two other claims: that the ban violates the Iowa Constitution’s equal protection and inalienable rights clauses.
Judge Farrell said he will set a trial scheduling conference once he receives jurisdiction over the case. He would consider a motion for a temporary injunction, if plaintiffs file one based on the equal protection or inalienable rights arguments. Otherwise he will schedule a bench trial—resolved by a judge, with no jury—to consider the merits of plaintiffs’ claims the law is unconstitutional.
Wessan said that since the Iowa Supreme Court held the law is subject to rational basis review, the state believes the case could be resolved through summary judgment. That is, the court would rule based on briefs submitted, without any trial proceedings.
A RISK OF “DUPLICATIVE LITIGATION”
Im flagged one unusual complication in this case, which plaintiffs mentioned in their petition for rehearing.
When the District Court blocked enforcement of House File 732, that order allowed the Iowa Board of Medicine to develop administrative rules to guide providers about the abortion restrictions. The board finalized those rules in April, and they contain more details than the statute does about the exceptions for cases of rape, incest, fetal abnormalities, miscarriages, and medical emergencies.
Plaintiffs have signaled that they will argue the law’s “inadequate exceptions” fail even rational basis scrutiny. But under the Iowa Administrative Procedure Act, plaintiffs must challenge the Board of Medicine’s rules at the agency level (in this case the Iowa Department of Inspections, Appeals, and Licensing) before going to court.
If the agency rejected their petition, plaintiffs could appeal in District Court. But that case couldn’t be rolled up with the current litigation over House File 732.
Thus, the State’s request to permit the Board of Medicine to promulgate regulations concerning an otherwise enjoined statute has created the possibility of duplicative litigation that could result in conflicting outcomes. Even if the statutory challenge to the Ban and the petition for judicial review of the administrative challenge to the Rule were before the same district court judge, they could not be consolidated because the statutory challenge would proceed to trial, whereas the challenge to the Rule would be in an appellate posture.
The plaintiffs have asked the Iowa Supreme Court to “provide guidance to the district court in this case—and to future litigants, district courts, and agencies facing similar situations—about how the concurrent challenges to the Ban and the Rule are to proceed.”
Final note: Polk County rotates cases among the District Court judges each calendar year. That’s why Judge Farrell is now handling litigation related to the abortion ban, even though Judge Joseph Seidlin issued the temporary injunction in July 2023.
This will be the second major abortion case to land in Judge Farrell’s courtroom. In 2014, he upheld an Iowa Board of Medicine rule banning the use of telemedicine for abortions. The Iowa Supreme Court unanimously reversed that holding in 2015, finding the policy unconstitutional because it placed “an undue burden on a woman’s right to terminate her pregnancy.”
Appendix: Plaintiffs’ petition for the Iowa Supreme Court to rehear the case known as Planned Parenthood of the Heartland v Reynolds VI