The Iowa Supreme Court split 3-3 on reviving a six-week abortion ban Friday, blocking the ban and keeping the procedure legal in the state.
One justice had recused, allowing for the even split.
The Iowa legislature had passed a six-week ban pre-Dobbs, back in 2018, which was swatted down and permanently enjoined by a state district court a year later. In Friday’s case, the legislators tried to dissolve that four-year-old injunction to bring the “fetal heartbeat” bill back to life. A district court had rejected the attempt, and the state Supreme Court’s draw means that lower-court decision stands, leaving the six-week ban blocked.
Such a decision bears even more weight in a state like Iowa, governed by a Republican legislature and Republican governor.
“This case is extraordinary,” writes Justice Thomas Waterman, joined by two other justices (all three appointed by Republican governors) in voting to not revive the bill. “It involves the polarizing issue of abortion, and specifically an unprecedented effort to judicially revive a statute that was declared unconstitutional in a never-appealed final judgment four years ago.”
Waterman takes umbrage at having to write an opinion at all, saying that the advisory opinions are non-binding and non-precedential, but that he felt compelled to “provide balance” since his colleagues “insist on writing.”
Referring to a different case, Waterman intones: “It would be ironic and troubling for our court to become the first state supreme court in the nation to hold that trash set out in a garbage can for collection is entitled to more constitutional protection than a woman’s interest in autonomy and dominion over her own body.”
Justice Christopher McDonald, writing for the three that would have revived the ban (also all Republican appointees), breaks from every part of Waterman’s argument, including his discontent about writing a non-binding opinion.
“Today, they set aside that respect and caution, sit as a three-person super general assembly, and hold the fetal heartbeat law unconstitutional,” he writes of the other three. “They do so despite waiting for and then receiving the wisdom of Dobbs. They do so despite this court’s controlling precedents. They do so despite the weight of the persuasive precedents and authorities. And they do so despite their personal precedents. I disagree with this results-oriented approach to deciding cases.”
In the meantime, per the Guttmacher Institute, abortion in Iowa remains legal up to 22 weeks.
Read the opinion here: