While abortion up to 20 weeks remains legal in Iowa as the state’s latest ban works its way through courts, Gov. Kim Reynolds is trying to expedite that ban despite most Iowans supporting safe and legal abortion access.
On Reynolds’ behalf, Attorney General Brenna Bird filed an appeal on Friday to ask the Iowa Supreme Court to change the legal standard for judging abortion restrictions before the newest abortion ban goes through legal proceedings. The Iowa Supreme Court agreed the appeal can move forward on Tuesday.
In Iowa, courts use the “undue burden standard, which means laws can’t create an unreasonable burden for people who seek abortions.
In the filing, Reynolds and Bird argue the courts should use the “rational basis standard” instead, which is a lower legal standard and would mean abortion restrictions are more likely to stay in place.
The standard requires the state to prove it has a legitimate governmental interest and there’s a rational connection between that goal and what the law requires.
It’s a normal standard of review for constitutional questions, including those that involve due process and/or equal protection.
Three Iowa Supreme Court Justices in June declined to lift the injunction on a 2018 six-week abortion ban in part because of the undue burden standard.
Because the Iowa Legislature passed a bill with mostly similar language in a special session on July 11, it would likely also fail to pass the undue burden standard because it bans abortion too early in the pregnancy for most people to know they’re pregnant.
The bill states that after electrical impulses can be detected using an abdominal ultrasound, abortion has to be prohibited. However, those impulses don’t come from a physical heart, and the pregnancy has not yet reached the fetal stage. At this point, the embryo is barely visible and the gestational sac is less than half-an-inch big.
In the filing, Bird said the Iowa Supreme Court should make this decision before the latest six-week ban starts moving through the courts.
“If this Court does not clarify the standard before summary judgement, the Parties and the district court are then bound to the inefficient path of litigating under uncertainty,” Bird wrote in the filing. “They will potentially waste significant time and resources developing a factual record that is irrelevant—until the inevitable appeal after a ruling on the merits.”
Reynolds and Bird argue explained their reasoning by pointing to the Iowa Supreme Court’s 2022 decision that the Iowa Constitution does not contain the right to abortion, and the US Supreme Court’s 2022 decision that the US Constitution doesn’t either.
“Eventually, this Court will have the final answer on what standard. It is in no Party’s interest to litigate under uncertainty while this important societal issue remains undetermined,” Bird wrote in the filing.
After the new ban passed on July 11, Reynolds signed it three days later at an Evangelical political event. A Polk County district court judge enjoined the ban on July 17 at the urging of Planned Parenthood and abortion providers, who argued it was putting up barriers to people accessing necessary health care. The injunction blocked enforcement of the bill, so until it’s lifted abortion is still legal in the state until 20 weeks of pregnancy.
Reynolds and Bird formally filed their appeal for the injunction to be lifted on Friday.
Physicians in Iowa have said the ban contradicts standard medical practice and training, and that it will likely endanger lives. Studies and reports from other states with strict abortion bans reveal that to be true.
Though Republicans claim they’re doing the will of Iowa voters, 61% of those polled this year said abortion should be legal in all or most cases. Hundreds gathered in the Capitol Rotunda during the special session to protest the bill and urge lawmakers not to pass it.
Story was updated with the latest information from the Iowa Supreme Court.
Nikoel Hytrek
7/24/23
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