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Will Iowa Supreme Court revisit its conclusion that under the state Constitution women have a fundamental right to abortion?

by | Feb 23, 2022

By Dave Andrusko

The ACLU and the Iowa Assistant Attorney General locked horns today as they told the Iowa Supreme Court why a 2020 law should or should not be upheld in light of a prior state Supreme Court decision. 

The 2020 law required a 24 hour waiting period. However District Court Judge Mitchell Turner “said the 24-hour delay was no different than an earlier version of the law that mandated a 72-hour delay, which the Iowa Supreme Court ruled unconstitutional,” wrote Rox Laird.  In that earlier case, the Iowa Supreme Court not only found the 72 hour waiting period unconstitutional but also concluded that women have a fundamental right to receive an abortion under the Iowa Constitution. 

In this morning’s oral arguments, Rita Bettis Austen, legal director for the American Civil Liberties Union of Iowa, told the justices the state’s argument is “very simple: It’s just that it disagrees with this court’s prior precedent, and that is not enough under the principles of stare decisis.”

Laird noted that in a brief filed with the justices, the state argued that decision was “demonstrably erroneous” because “nothing in the text, structure, history, or tradition of the Iowa Constitution makes abortion a fundamental right.” 

That argument was forcefully made Wednesday by Christopher Schandevel of the ADF, which filed an amicus brief in the case on behalf of 60 members of the GOP-controlled Iowa Legislature. Schandevel was granted a share of the state’s allotted time.

For a court to declare a fundamental constitutional right, Schandevel said, “that right has to be a liberty interest that is deeply rooted in the history and tradition of the nation or the state of Iowa. Six months after the Iowa framers adopted the Iowa Constitution, the Iowa Legislature passed a law criminalizing abortion in all cases except for the life of the mother.”

Chief Justice Susan Christensen questioned whether a 24-hour delay represents an “unconstitutional burden.”

 “In my prior life I was an adoption lawyer, and somebody would come to me and want to place their baby for adoption,” Justice Christensen said. “And there were people who changed their mind after talking to me or chatting with their friends, or whatever. But even it’s only one person, let’s say it only changes one person’s mind, is 24 hours really that unreasonable?”

Laird reported that in response, Bettis Austen said “the state has not put any evidence in the record” that mandatory delays change women’s minds, “and the unrebutted evidence is that they don’t.” In addition, Bettis Austen countered, “In reality women have even longer even than the mandated 24-hour delay to change their minds under ordinary informed consent practices.”

But Schandevel told the justices they should overturn the 2018 precedent. 

“When a Constitution is silent and therefore neutral on an issue like abortion, courts have a responsibility to be scrupulously neutral on those subjects, leaving them to the people to regulate through their elected representatives.”

Justice Thomas Waterman raised the issue that the Supreme Court will hand down a decision in Mississippi’s Gestational Age Act this June. He asked Assistant Iowa General Sam Langholz about that in this morning’s hearing. 

“The U.S. Supreme Court is going to announce an abortion decision by the end of June. We have a long line of cases where we have held the Iowa due process clause has the same purpose, scope and effect. Should our court wait to see what the U.S. Supreme Court does?” Waterman asked.

“We think it’s not necessary to do that,” Langholz replied, according to Laird. “But, he said, ‘it is appropriate to reach the question here, now. The fact that the 2018 decision is manifestly erroneous is enough to reject that decision.’”

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