The ACLU of Iowa filed new legal arguments last week in Iowa’s most important pending abortion rights case. Governor Kim Reynolds is seeking to reinstate a near-total abortion ban, which a Polk County District Court found unconstitutional in 2019.

Last month, private attorneys representing the state in this litigation (since Attorney General Tom Miller declined to do so) gave the District Court one big reason to lift the permanent injunction on a 2018 law that would ban almost all abortions after about six weeks.

In a response brief filed on behalf of Planned Parenthood of the Heartland, the ACLU gave the District Court several paths to reject the state’s request.

“THERE IS NO BASIS FOR THE STATE’S MOTION”

Here’s the full brief submitted on behalf of Planned Parenthood. (Disclosure: The ACLU of Iowa is also representing me, along with other plaintiffs, in an unrelated open records lawsuit against Reynolds and some governor’s office staff.)

Alan Ostergren of the Kirkwood Institute and attorneys from the Alliance Defending Freedom argued in their motion on behalf of the state that an Iowa court “may modify or vacate the injunction if, over time, there has been a substantial change in the facts or law.” They claimed the Iowa Supreme Court’s reversal of its abortion rights precedent and the U.S. Supreme Court’s Dobbs decision, which overturned the Roe v. Wade and Casey precedents, substantially changed the law on abortion regulations. Consequently, they maintain, the 2018 law should be allowed to go into effect.

Planned Parenthood’s brief lays out many problems with that request.

First, Iowa’s rules of civil procedure do not permit a motion to vacate a final judgment filed more than one year after the judgment was issued (in this case, January 2019). “This time to file is jurisdictional; Iowa courts are without power to entertain a petition filed after one year.“

In addition, the relevant rule of civil procedure spells out possible reasons for vacating a final judgment, and those do not include “a change in law.”

Although the state’s brief cites federal cases that support its action, the ACLU’s response notes that federal rules on civil procedure provide “much broader grounds on which a trial court may issue relief from a final judgment than Iowa’s Rule 1.1012.”

That distinction is important because Planned Parenthood challenged the 2018 abortion ban in state court, and argued the law violated provisions of the Iowa Constitution (not the U.S. Constitution).

“AS IF IT HAD NEVER BEEN PASSED”

The next problem with the state’s request: no Iowa case “has applied the principle that a substantial change in law justifies dissolution of a permanent injunction, much less a decision where the permanent injunction is in place to preserve constitutional rights and the infringing law had been declared void.”

The state’s attorneys cited a 1995 Iowa Supreme Court decision known as Bear to support the idea that an Iowa court “may modify or vacate the injunction if, over time, there has been a substantial change in the facts or law.” However, “Bear did not even involve a motion for modification or a change of law or fact; the Court concluded merely that a party had violated a permanent injunction.”

While some federal case law may support the approach the state desires, “the federal rules regarding relief from final judgments, including permanent injunctions, are far broader than those in Iowa.”

The state’s attorneys cited a 1942 Iowa Supreme Court decision in a misleading way. But that case “involved a motion by defendants to dissolve a temporary injunction that had been issued without notice to them [….] That case does not remotely imply any doctrine that would permit, still less require, vacating a permanent injunction based on a change in the law.”

The next part of Planned Parenthood’s brief is devastating to the state’s case.

The Iowa Constitution provides “[t]his constitution shall be the supreme law of the state, and any law inconsistent therewith, shall be void.” Iowa Const., Art. XII, § 1 (emphasis added). Based on this provision, when a statute is ruled unconstitutional, it is treated essentially as if it had not been passed.

In a 1924 case, Security Savings Bank of Valley Junction v. Connell, the Iowa Supreme Court held that when a statute was “declared to be unconstitutional, it ceased to be, as effectually as if it had never been passed,” adding,

It has been often said of an unconstitutional legislative act that it “is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.” […]

“When a statute is adjudged to be unconstitutional, it is as if it had never been. Bights cannot be built up under it.” Cooley’s Constitutional Limitations (7th Ed.) 259).

Since the Polk County District Court has already struck down the 2018 abortion ban, it should not allow a voided law to take effect. Rather,

If the State wishes to ban abortion at six weeks LMP [since last menstrual period] and believes it has the authority to do so consistent with the Constitution, it may instead petition the current Iowa Legislature to pass such a law now, rather than attempting to revive a law that was clearly unconstitutional and void at the time it was passed by an earlier legislature.

I suspect the governor’s legal action was primarily a stalling tactic. It gave Reynolds a good excuse not to call a special legislative session where Republican lawmakers would cast an unpopular vote to ban abortion before the midterm election.

“THE UNDUE BURDEN TEST REMAINS THE APPROPRIATE TEST TO APPLY IN IOWA”

Most of the ACLU’s brief rebuts the idea that a change in law could justify vacating a permanent injunction issued years earlier. But just in case the District Court decides it could do what the state wants, the petitioners explain near the end of the brief why the state “has not met its burden” of showing the 2018 law should not be blocked.

The state wants Iowa courts to evaluate abortion restrictions using a “rational basis” standard, as the U.S. Supreme Court did in Dobbs. That’s the easiest bar for the government to clear; the state would need to show only that the law facilitates some legitimate interest (in this case protecting unborn life).

But Reynolds already asked the Iowa Supreme Court to revisit its latest abortion ruling (known as Planned Parenthood of the Heartland v. Reynolds IV) in light of Dobbs. The court chose not to rehear that case.

A plurality of Iowa Supreme Court justices declined in June to establish a new legal standard for abortion cases. From page 8 of the majority opinion:

Hence, all we hold today is that the Iowa Constitution is not the source of a fundamental right to an abortion necessitating a strict scrutiny standard of review for regulations affecting that right. For now, this means that the Casey undue burden test we applied in PPH I remains the governing standard.

“PPH I” refers to a 2015 case, in which the Iowa Supreme Court struck down a ban on using telemedicine for abortions.

Although the U.S. Supreme Court rejected the undue burden standard in Dobbs, the Iowa Supreme Court has independent authority to interpret the state constitution. For that reason, the ACLU and Planned Parenthood argue, “The U.S. Supreme Court decision in Dobbs does not change that the undue burden test remains the appropriate test to apply in Iowa.”

A ban on almost all abortions after around six weeks, before many women even know they are pregnant, would obviously impose an undue burden on abortion seekers. So “there is plainly no basis for disturbing the injunction in this case.” Allowing the 2018 law to go into effect “would wrongly eliminate the right of Iowans to obtain previability abortions despite the Iowa Constitution continuing to protect abortions under the undue burden standard. Equity demands that this injunction remain in place.”

NEXT STEPS

The private attorneys representing the state in this litigation have until September 26 to file their reply to the ACLU’s brief.

District Court Judge Celene Gogerty has scheduled a hearing for October 28. She will issue a decision later this year or in early 2023.

Whatever the outcome at the District Court level, the losing side will likely appeal to the Iowa Supreme Court. However, the high court probably would not hear the case until after the Iowa legislature has completed its 2023 session.

So if Reynolds is re-elected in November, and the Iowa House and Senate remain in Republican control, the legislature may opt to pass a new law restricting abortions after six weeks (or banning abortion altogether) next year. Planned Parenthood would certainly challenge such a law in court, and the Iowa Supreme Court would ultimately decide whether “rational basis” or “undue burden” should be the appropriate standard of review.

Bleeding Heartland previously speculated about how the justices might approach that question; the discussion is in the last section of this post.