The Volokh Conspiracy

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Iowa S. Ct. Overrules Decision Subjecting Abortion Restrictions to Strict Scrutiny Under Iowa Constitution

The Court doesn't decide whether that means they are subject to an "undue burden" test (as under Planned Parenthood v. Casey) or whether there is no right to abortion under the state constitution.


From today's decision in Planned Parenthood of the Heartland v. Reynolds (which will presumably now be PPH III):

In Planned Parenthood of the Heartland v. Reynolds (PPH II) (Iowa 2018), we confronted a mandatory 72-hour waiting period for abortion that the legislature had enacted in 2017…. [W]e rejected the undue burden test. Instead, we found that the Iowa Constitution—specifically, the due process clause—protected abortion as a fundamental right. We determined that the waiting period could not survive strict scrutiny under that test and struck it down as unconstitutional….

[We] overrule PPH II, and thus reject the proposition that there is a fundamental right to an abortion in Iowa's Constitution subjecting abortion regulation to strict scrutiny, we do not at this time decide what constitutional standard should replace it. As noted, in PPH I [in 2015], we applied the undue burden test under our constitution when the State conceded that it applied. An amicus curiae argues that we should hold that the rational basis test applies to abortion regulations. But the State takes no such position; it simply asks that PPH II be overruled and stops there….

In addition, we are not blind to the fact that an important abortion case is now pending in the United States Supreme Court. See Dobbs v. Jackson Women's Health Org…. 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. Hence, all we hold today is that the Iowa Constitution is not the source of a fundamental right to an abortion necessitating a strict scrutiny standard of review for regulations affecting that right. For now, this means that the Casey undue burden test we applied in PPH I remains the governing standard. On remand, the parties should marshal and present evidence under that test, although the legal standard may also be litigated further.

This accurately summarizes the bottom-line outcome of the case, but note the split in the opinions:

  1. The lead opinion, written by Justice Edward Mansfield, joined in relevant part by Justices Thomas Waterman and Dana Oxley, fully endorse that result.
  2. Justices Matthew McDermott and Christopher McDonald, would have rejected any heightened scrutiny (including the "undue burden" test) for abortion restrictions.
  3. Chief Justice Susan Christensen and by Justice Brent Appel would have preserved strict scrutiny (Christensen as a matter of stare decisis, and Appel, the only Justice on the court who was in the 2018 PPH II majority, on the merits).