Randy Evans is executive director of the Iowa Freedom of Information Council and can be reached at DMRevans2810@gmail.com. 

Through the years, Iowa Supreme Court justices typically avoid harsh or overzealous language in their decisions.

That is why two separate dissenting opinions jumped out on June 28, when the court issued its long-anticipated decision on the legislature’s latest attempt to ban nearly all abortions in Iowa.

By a 4-3 split, the Supreme Court decided the 2023 law is a rational response to a legitimate state interest, protecting the lives of unborn children. The law prohibits abortions once “cardiac activity” in the fetus is detectable by ultrasound, usually about six weeks after conception. The law provides exceptions for rape or incest, when the fetus has an abnormality incompatible with life, or when the pregnancy endangers the mother’s life.

The authors of the two dissents were Chief Justice Susan Christensen of Harlan and Justice Edward Mansfield of Des Moines. They were joined by Justice Thomas Waterman of Davenport. Their 56 pages of analysis and commentary provide important insight into this divisive issue.

The dissenting justices called the decision “simply wrong” and “a giant step backward.” They reminded colleagues on the court, and the public, “The rights of Iowans did not freeze once our state constitution took effect.”

The chief wrote:

So is it any wonder why Iowa is not flush with legal history demonstrating that a medical procedure specific to women is a deeply rooted part of our state’s tradition? […]

There were no women members of the Iowa constitutional conventions, which occurred in 1844, 1846 and 1857 and no women members of the legislature during that period. While African-American males received the right to vote when the states ratified the 15th Amendment to the United States Constitution in 1870, women of all races had to wait until 1919 for that right. It was not until 1998 that the citizens of Iowa voted to expressly include women in the language of the Iowa Constitution’s inalienable rights clause.

Chief Justice Christensen continued: “Unfortunately, this statute—and the majority’s decision allowing it to take effect—not only brings that progress to a halt but also takes a giant step backward. […] women ‘are once again relegated to their traditional (and outdated) roles as only child-bearers and mothers,’ ‘forced to live their 21st century lives by 19th century standards and mores.’”

The court’s majority pointed to Iowa history to conclude there is no fundamental protection for abortion. But Justice Mansfield observed in a footnote that the 1857 constitutional debates lasted 39 days, producing 1,061 pages of records on the discussions. “Yet the word ‘woman’ or ‘women’
appears only sixteen times. […] By comparison, the debates contain thirty-eight references to ‘horse’ or ‘horses.’ See id. That Iowa no longer exists today.”

Justice Mansfield added: “We can’t ignore the morality code of mid-19th century Iowa as some sort of unconstitutional anachronism, while treating the abortion law of mid-19th century Iowa as some sort of constitutional guidepost for today.”

The case before the court hinged on what legal standard the justices should use in judging the 2023 abortion law. The majority concluded the law can stand if there is a “rational basis” for showing the restrictions relate to “a legitimate state interest.” The dissenters believed the court should balance the government’s interest in preventing abortions against the liberty interests of pregnant women by weighing whether the restrictions create an “undue burden” for women and girls.

“I fail to see how a woman’s right not to procreate can have no constitutional protection,” Justice Mansfield wrote. “The decision not to have children is as fundamental as the decision to have children.” He also wondered in a footnote, “Could the Iowa Legislature limit family size, an issue that The Des Moines Register polled on in 1971?”

He went on:

At the sixth week, a woman may not even know she is pregnant and has almost certainly not sought medical care for her pregnancy. The six-week mark does not allow enough time for a woman to make a decision whether or not to carry a pregnancy to term. […]

So, the net effect of the six-week ban is that it forbids many women from ever making a truly voluntary decision to have children or not.

Chief Justice Christensen was troubled by what she called the “proclaimed interests” of the statute, the government’s vital interest in protecting unborn human life. “To a lesser degree, it also mentions the ‘protection of maternal health and safety,’ ” she wrote.

“While the statute outlines exceptions that allow for abortions in situations involving rape, incest, certain fetal abnormalities incompatible with life, miscarriages or medical emergencies, they are crafted in such a way that the application rings hollow,” the chief wrote. “Frankly, in many of these situations, they serve as another example of how this statute prioritizes the unborn over the living, placing pregnant women in grave harm in the process.”

She added: “The State offers no reason why pregnancies that result from rape or incest can be terminated after a fetal heartbeat is detected, while other pregnancies must continue. Terminating any pregnancy results in the loss of potential life, regardless of how those pregnancies were conceived.”

News in recent months has reported on problems pregnant women faced in states with a near-total ban on abortions when there are serious problems with the woman’s health or the viability of her unborn child, she wrote. “Nothing promotes life like a forced hysterectomy preventing a woman from ever becoming pregnant again because she could not terminate a doomed pregnancy under the medical emergency exception.”

The dissenting justices warned about further changes that could come to Iowa because of the court’s decision and the legal reasoning the majority used.

Other states with near-universal abortion bans have seen a decline in the number of OB-GYN physicians who choose to practice there, the chief justice’s opinion noted. “This trend will affect all pregnant women in Iowa—not just those seeking an abortion.”

She added, “Today’s ruling casts doubt on the stability of rights like contraception, interracial marriage, and same-sex marriage should constitutional challenges to these rights come before us.”