In rare 3-3 decision, Iowa Supreme Court rejects attempt to reinstate strict abortion ban

FILE - Kim Reynolds, governor of Iowa, speaks during a campaign kickoff event for Ron DeSantis, governor of Florida, in Clive, Iowa, US, on Tuesday, May 30, 2023. (Al Drago/Bloomberg via Getty Images)

Abortion will remain legal in Iowa after the state's high court declined Friday to reinstate a law that would have largely banned the procedure, rebuffing Republican Gov. Kim Reynolds and, for now, keeping the conservative state from joining others with strict abortion limits.

In a rare 3-3 decision, the Iowa Supreme Court upheld a 2019 district court ruling that blocked the law. The latest ruling comes roughly a year after the same body — and the U.S. Supreme Court — determined that women do not have a fundamental constitutional right to abortion.

The blocked law bans abortions once cardiac activity can be detected, usually around six weeks of pregnancy and before many women know they are pregnant.

Writing for the three justices who denied the state's request to reinstate the law, Justice Thomas Waterman said granting that request would mean bypassing the legislature, changing the standard for how the court reviews laws and then dissolving an injunction enacted by a lower court that blocked the law.

"In our view it is legislating from the bench to take a statute that was moribund when it was enacted and has been enjoined for four years and then to put it in effect," Waterman wrote.

The court has seven members but one justice declined to participate. Her former law firm had represented an abortion provider. All of the justices were appointed by Republican governors and five were appointed by Reynolds.

In a statement, Reynolds expressed disappointment in the court's ruling.

"Not only does it disregard Iowa voters who elected representatives willing to stand up for the rights of unborn children, but it has sided with a single judge in a single county who struck down Iowa’s legislation based on principles that now have been flat-out rejected by the U.S. Supreme Court," Reynolds said.

Reynolds added that "the fight is not over." She said her administration was considering options but didn't give specifics, such as calling for a special legislative session to enact stricter abortion laws.

Republicans hold large majorities in the state House and Senate, and leaders of both chambers criticized the ruling and suggested they will work toward passing new legislation.

"Senate Republicans have a consistent record of defending life, including the passage of the Heartbeat Bill," Senate Majority Leader Jack Whitver said in a statement. "We will work with Governor Reynolds and the House to advance pro-life policies to protect the unborn."

Ruth Richardson, president and CEO of Planned Parenthood North Central States, called the decision "an enormous win."

"Each person deserves control of their body, and Iowans have that right, based on today’s court decision," she said in a statement. "Abortion bans make pregnancy more dangerous than it already is, and it shouldn’t matter which state you live in."

While the state’s high court maintains the block on the law, it does not preclude Reynolds and lawmakers from passing a new law that looks the same. The decision Friday was largely procedural — the 2022 appeal to the 2019 ruling was too late.

Abortions remain legal in Iowa up to 20 weeks of pregnancy.

Most Republican-led states have severely curtailed access to abortion in the year since the U.S. Supreme Court stripped women's constitutional right to abortion by overturning Roe v. Wade and handing authority over the issue to states.

Reynolds signed the 2018 law despite state and federal court decisions at the time, including Roe, affirming a woman’s constitutional right to abortion. Planned Parenthood sued and a state judge blocked the law the following year. Reynolds did not appeal the decision at the time.

In a separate case, the Iowa Supreme Court decided last year to reverse an opinion saying the state’s constitution affirms a fundamental right to abortion. Roe was overturned a week later and Reynolds sought to dissolve the 2019 decision.

A state judge ruled last year that she had no authority to do so and Reynolds appealed to the state's Supreme Court, which is now far more conservative than when the law was first passed. Reynolds appointed five of the court’s seven members.

Because Friday's decision was tied, the court affirms the lower court decision but otherwise the high court's opinions have no other authority. That means earlier rulings that applied an "undue burden test" for abortion laws remains in effect.

The undue burden is an intermediate level of scrutiny that requires laws do not create a significant obstacle to abortion. Lawyers for the state argued the law should be analyzed using rational basis review, the lowest level of scrutiny to judge legal challenges.

In his opinion supporting reversal of the law, Justice Christopher McDonald wrote that to reject the appeal and deny the reinstatement of a law is to curtail the power of the legislative branch. He goes on to argue that there has been substantial change in law that allows for the dissolution of the 2019 ruling.

Waterman's opinion noted that usually when there is a split decision, the court issues no opinion. He said he and two concurring justices did so this time because "our three colleagues insist on writing, so we must explain our views to provide balance."

The last time the court issued an opinion in an evenly split decision was 2009. Since then, it has issued 18 divided rulings with no opinions attached.

Although called a "fetal heartbeat" law, the measure does not easily translate to medical science. At the point where advanced technology can detect the first visual flutter, the embryo isn’t yet a fetus and does not have a heart. An embryo is termed a fetus eight weeks after fertilization.

The Iowa law contains exceptions for medical emergencies, including threats to the mother’s life, rape, incest and fetal abnormality.