The Iowa Supreme Court on Friday upheld a waiting period for abortions virtually identical to one it knocked down four years ago, abruptly reversing its 2018 finding that Iowans have a fundamental right to abortion under the state constitution.
While the now-more conservative court gamely tries to poke holes in its own toddler-aged reasoning, it doesn’t mask its acute awareness of the fragility of abortion rights on the national level.
“We are not blind to the fact that an important abortion case is now pending in the United States Supreme Court,” Justice Edward Mansfield writes for the majority. “That case could alter the federal constitutional landscape established by Roe and Casey. While we zealously guard our ability to interpret the Iowa Constitution independently of the Supreme Court’s interpretations of the Federal Constitution, the opinion (or opinions) in that case may provide insights that we are currently lacking.”
The Friday decision often bears significant similarity to the draft Supreme Court opinion overturning Roe written by Justice Samuel Alito, indulging in a long digression about the historical lack of abortion rights, shrugging at stare decisis and insisting that the likely perception of the decision as wholly politicly motivated is no reason not to make it.
“Stare decisis is not an ‘inexorable command,’” Mansfield writes, later adding that the court’s 2018 decision could not be considered “long-standing” and that “precedents generally grow deeper roots as they age.”
The majority quotes Justice Amy Coney Barrett’s writings from before her time on the bench at length in its self-regarding proclamations about judges’ duties to call balls and strikes, no matter that court watchers will note that all that’s changed since the 2018 decision is the court’s composition.
“Shouldn’t we instead follow our solemn oaths to uphold the Iowa laws and constitution? In the end, court decisions should be — and we believe are — judged by the strength of their reasoning, not by the identity of the persons who wrote or joined them,” Mansfield writes.
In its originalism arguments, the majority nearly copies and pastes right from Alito’s text: “We note that on the specific topic of abortion, the Iowa Constitution is silent: if one were to search the constitution’s text for terms such as ‘abortion’ and ‘pregnancy,’ it would yield no results.”
The majority also, in an Alito-esque manner, insists that courts simply shouldn’t pick sides on such a contentious issue — ignoring the fact that removing abortion’s state constitutional protections is, by definition, picking a side.
The majority writes that strict scrutiny is not the appropriate measure to apply to abortion restrictions, but doesn’t say which standard should replace it. Strict scrutiny is the highest standard of judicial review courts use to weigh government action infringing on a constitutional right.
Two of the conservative justices, Justices Christopher McDonald and Matthew McDermott, dissent in part to lobby that the court drop abortion restrictions down to a much more lenient “rational basis” test at once, without waiting for the parties to litigate further.
Chief Justice Susan Christensen and Justice Brent Appel dissent more meaningfully from the majority opinion, with Appel — the sole Democratic nominee on the court — writing for more than 90 pages.
“The legitimacy of judicial review hinges in part on the public perception that we are applying the rule of law regardless of our personal preferences instead of merely engaging in judicial policymaking,” Christensen writes, noting the changed composition of the court since 2018.
She adds that leaving the question of what standard to apply to abortion restrictions open only contributes to the confusing patchwork of abortion jurisprudence: the state and federal body of rulings on the issue are “like a game of Jenga, progressively becoming more unstable until it collapses.”
Appel addresses the majority’s argument point by point, spending significant time dismantling the “narrow textualism” the majority is using to “eviscerate” reproductive rights.
“It makes little sense to determine whether women have a fundamental right to reproductive autonomy from the lens of the white males who fashioned the United States and Iowa Constitutions,” he writes.
He urges, if the majority insists on disregarding the strict scrutiny standard, that it replace it with an undue burden standard “with teeth” to give reproductive rights as extensive of protections as possible. He’s not pollyannaish about the future of abortion rights in his state, though.
“A strong barrier to state interference in a woman’s right to determine whether to have an abortion has been removed by the majority,” he writes. “And the right to abortion is left in a free fall. Make no mistake — reproductive rights are at great risk with this decision.”
Read the decision here:
