Governor turns up pressure on Iowa Supreme Court over abortion ban
This exclusive reporting and analysis first appeared at Bleeding Heartland and is shared here as part of the Iowa Writers Collaborative. For regular emails linking to all recent Bleeding Heartland articles and commentary, subscribe to the free Evening Heartland newsletter.
Abortion became legal again in Iowa on July 17, after a Polk County District Court blocked the state from enforcing a near-total ban Governor Kim Reynolds had signed into law three days earlier.
Reynolds immediately vowed to "fight this all the way to the Iowa Supreme Court where we expect a decision that will finally provide justice for the unborn.”
It was the latest example of Reynolds striking a defiant tone toward the jurists who will eventually decide whether the Iowa Constitution allows the government to make abortion almost impossible to obtain.
"THE FIGHT IS NOT OVER"
When Reynolds signed a 2018 bill that would ban nearly all abortions after embryonic cardiac activity can be detected (usually around six weeks), it was the strictest law of its kind in the country. But after a Polk County District Court struck down that statute in 2019, the governor didn't appeal the decision. At that time, the Iowa Supreme Court would certainly have upheld the lower court's ruling.
Untimely deaths and retirements accelerated turnover on the high court. Reynolds has appointed five of the seven current justices and four of the six who participated in the most recent abortion legal dispute. (Justice Dana Oxley, whom Reynolds appointed in 2020, recused herself from that case.)
In an unusual move, Reynolds attended the Iowa Supreme Court's oral arguments in April, as the state sought to lift the permanent injunction on that 2018 abortion ban. And in an unprecedented gesture of power, she and her entourage used a secure elevator and walked through the justices' private office space on their way to the courtroom for those arguments. According to Chief Justice Susan Christensen's legal counsel, neither the justices nor judicial branch staff authorized the governor to be in those non-public areas.
Last month, the justices deadlocked over whether to allow the 2018 law to go into effect. Three Reynolds appointees—Justices Christopher McDonald, Matthew McDermott, and David May—would have granted the state's request. On the other side, the chief justice, whom Reynolds appointed in 2018, joined Justices Thomas Waterman and Edward Mansfield, whom Governor Terry Branstad appointed in 2011. The tied result affirmed a lower court ruling by operation of law, meaning that the previous abortion ban would remain permanently enjoined.
Reynolds made her displeasure known.
About an hour after the Iowa Supreme Court announced its split decision, the governor released a written statement slamming the outcome as contrary to justice and the popular will.
“To say that today’s lack of action by the Iowa Supreme Court is a disappointment is an understatement. Not only does it disregard Iowa voters who elected representatives willing to stand up for the rights of unborn children, but it has sided with a single judge in a single county who struck down Iowa’s legislation based on principles that now have been flat-out rejected by the U.S. Supreme Court. There is no fundamental right to abortion and any law restricting it should be reviewed on a rational basis standard – a fact acknowledged today by three of the justices. Still, without an affirmative decision, there is no justice for the unborn.
“But the fight is not over. There is no right more sacred than life, and nothing more worthy of our strongest defense than the innocent unborn. We are reviewing our options in preparation for continuing the fight.”
The fight continued soon after Reynolds returned from a two-week overseas trip.
"TODAY THEY HAVE A CLEAR ANSWER"
The governor called a special legislative session for July 11, "with the sole purpose of enacting legislation that addresses abortion and protects unborn lives." A news release from her office again asserted that the Iowa Supreme Court's "lack of action disregards the will of Iowa voters and lawmakers who will not rest until the unborn are protected by law."
I thought Republicans might spend some time fixing problems with the 2018 law, which was hastily drafted without much attention to detail. Instead, the majority party introduced a bill that was almost identical, from its vague and narrow description of "medical emergency" to its legally incorrect reference to "rape," a term not defined in Iowa's criminal code.
Like the 2018 version, House File 732 requires trans-abdominal ultrasounds, which can produce inaccurate results and are not the medical standard of care for pregnancy. It gives a person who became pregnant through incest 140 days to report the assault. But someone abused by a non-relative (even a young child) could get an abortion only if they had reported the crime within 45 days—a deadline that would probably pass before they confirmed the pregnancy.
Republicans made only two revisions to the 2018 law: they changed the phrase "medically necessary" to "fetal heartbeat exception," and added an immediate enactment clause. The new bill would take effect upon Reynolds' signature, without leaving time for the Iowa Board of Medicine to adopt administrative rules interpreting its provisions.
Iowa House and Senate floor managers took a few swipes at the Supreme Court when the chambers debated the bill on July 11. Last month's non-binding opinion by Justice Waterman had argued, "when the statute was enacted in 2018, it had no chance of taking effect. To put it politely, the legislature was enacting a hypothetical law."
State Representative Shannon Lundgren noted during her opening comments that both chambers had approved the 2018 bill, and the governor had signed it. "There was nothing hypothetical about it then, and there is nothing about that now."
Iowa Senate President Amy Sinclair compared the special session to the movie "Groundhog Day," because lawmakers were repeating themselves.
Sinclair emphasized that the Iowa Code chapter approved in 2018 "has never been adjudicated to be unconstitutional by our court system on the merits of the law. It is only in limbo today because of what I view to be an overreach by the judicial branch."
She added, "And so here we are needlessly forcing the legislature to re-pass a law that is already enacted, in an effort to protect the lives of every single individual across our state who has a beating heart."
Minutes after Senate Republicans voted for final passage of the bill, Reynolds said in a late-night written statement, "The Iowa Supreme Court questioned whether this legislature would pass the same law they did in 2018, and today they have a clear answer. The voices of Iowans and their democratically elected representatives cannot be ignored any longer, and justice for the unborn should not be delayed."
The irony is, the governor herself delayed acting on the bill for two and a half days. The spectacle surrounding her signing sent another message to Supreme Court justices.
A FALSE CLAIM
Reynolds has signed some high-priority bills within hours of their passage, in the dead of night or the following morning. Why did she wait until the afternoon of July 14 to sign this one?
The governor wanted the signing ceremony to occur at the Family Leadership Summit. It was lost on no one that Bob Vander Plaats, president and CEO of The FAMiLY Leader, led the charge to oust three Iowa Supreme Court justices in 2010 and the unsuccessful attempt to take out one more in 2012.
Vander Plaats recently argued in a guest editorial for the Des Moines Register that the three justices who refused to reinstate the abortion ban deserve to be removed from office too. (That would presumably occur through impeachment proceedings, since none of them will be up for retention again until 2028.)
Reynolds didn't disavow Vander Plaats' crusade against the justices who joined the 2009 marriage equality ruling, and she hasn't distanced herself from his latest call to remove three justices who didn't comply with conservative demands.
On the contrary: in front of a cheering Family Leadership Summit crowd, Reynolds assailed those justices with a false, inflammatory claim, saying,
While half the bench expressed the opinion that the court had “failed the parties, the public and the rule of law” by refusing to decide the case, the other three justices engaged in pure political rhetoric, comparing an unborn child to trash and declaring the fetal heartbeat law to be no law at all, but only a “hypothetical law.”
That was no improvisation. The phrasing came straight from Reynolds' prepared remarks, which the governor's office released shortly after the signing ceremony.
Justice Waterman did use the phrase "hypothetical law." But he never compared a fetus to trash. Rather, last month's opinion alluded to a 2021 decision on warrantless garbage searches (from which Justices Waterman and Mansfield and Chief Justice Christensen dissented) to make a different point:
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. […] That would be untenable.
You can call that "political rhetoric," and you can quibble that the 2021 majority ruling provided constitutional protection to Iowans against warrantless searches, not rights for trash itself. But you can't sincerely claim three justices said fetuses are garbage. Justice Waterman's opinion acknowledged "the state’s interest in protecting unborn life and maternal health," as a legitimate concern to be balanced against "a woman’s limited liberty interest in deciding whether to terminate an unwanted pregnancy."
That balance is lacking in those who would uphold the state's "rational basis" for forcing pregnancy and childbirth on thousands of Iowans a year, regardless of the physical pain, mental anguish, health risks, or other lasting hardship involved.
What does the governor gain by whipping up animosity toward the justices who defied her?
I suspect the attacks are a warning to the jurist who did not take part in last month's case. She may cast the deciding vote on whether to let the new law stand.
"WE EXPECT A DECISION THAT WILL FINALLY PROVIDE JUSTICE"
The July 17 news release quoted Reynolds as saying, “The abortion industry’s attempt to thwart the will of Iowans and the voices of their elected representatives continues today, but I will fight this all the way to the Iowa Supreme Court where we expect a decision that will finally provide justice for the unborn.”
Justice Oxley recused from the dispute over the 2018 law, because her former law firm (Shuttleworth & Ingersoll of Cedar Rapids) represents the Emma Goldman Clinic, a party to the case. That clinic is one of the plaintiffs in the new lawsuit, and has the same attorneys.
Attorneys for the state filed an application for interlocutory appeal on July 21. If the Iowa Supreme Court agrees to hear the state’s challenge to the temporary injunction, we may find out later this year whether Justice Oxley is inclined to recuse again, or will hear the next abortion case, on the grounds that several years have passed since she was in private practice. Iowa Supreme Court justices decide for themselves when to recuse.
A recusal could set up another 3-3 deadlock, leaving the Polk County court's temporary injunction in place by operation of law. District Court Judge Joseph Seidlin determined the plaintiffs had standing to sue, would be irreparably harmed by enforcing the abortion ban, and would likely succeed on the merits of their due process claim. He noted that the Iowa Supreme Court's plurality opinion in Planned Parenthood of the Heartland v. Reynolds IV from 2022 established the "undue burden" standard for now.
A law banning nearly all abortions could never withstand heightened scrutiny. At a July 14 hearing, the state's attorney asked the judge to apply rational basis review. But the injunction order explains, "This court is not at liberty to overturn precedent of our Supreme Court."
Judge Seidlin did not analyze the plaintiffs' other counts, since likely success on the due process claim was sufficient to grant the injunction. The abortion providers also say the law violates the "inalienable rights" of Iowans as well as the state constitution's equal protection clause by singling out abortion from other medical procedures and discriminating against women.
Another Polk County judge may preside over the trial (cases are typically reassigned at the beginning of each calendar year). That judge may view the constitutional arguments differently from Judge Seidlin. Whatever the lower court decides would be affirmed by operation of law if the Supreme Court ties again.
But what if Justice Oxley participates? Justice Waterman argued last month, "The incredibly consequential constitutional issues relating to abortion should understandably be decided by a full court if at all possible."
No one can say where the seventh justice would land on the most important question: whether to use a balancing test or a rational basis standard to evaluate abortion restrictions. In the 2022 case, she signed on to the plurality opinion (authored by Justice Mansfield, also joined by Justice Waterman), which left the undue burden standard in place.
However, that opinion invited the parties to litigate the standard of review and did not "prejudge the position our court will take." So there's no guarantee Justice Oxley would strike down the new law as too limiting of bodily autonomy or due process. She may decide the state's legitimate interest in preventing abortions is enough.
One other aspect of the strained relationship between the governor and the Supreme Court is worth discussing. Although this episode did not receive any media coverage to my knowledge, it surely did not escape the justices' attention.
A LAST-MINUTE BUDGET CUT
The Iowa legislature's approach to passing a budget for fiscal year 2024 (which began on July 1) was the least transparent in living memory. Reynolds' staff and top Republican lawmakers brokered all deals behind closed doors—not at the end of the process, as had long been standard operating procedure, but before either chamber had approved any spending plans.
The Senate Appropriations Committee advanced more than a half-dozen blank budget bills in April. The majority party filled in the numbers later through amendments, which were sometimes published just a few hours before the Senate floor debate.
On the House side, several draft appropriations bills appeared on the legislative website for the first time after negotiators had agreed on funding and/or staffing levels for each line item. Republicans then moved the bills through committee and floor debate without accepting any amendments.
The process hit a bump in the road with the judicial branch budget.
In the first six years of the Republican trifecta, funding for the judicial branch increased by just 6.55 percent, compared to a 13.15 percent increase in spending on all branches of state government.
The judicial branch requested $197,689,919 for its operating budget in fiscal year 2024—an increase of $7,589,369 (4.0 percent) from the fiscal year 2023 appropriation of $190,100,550. The extra funds were envisioned to help judicial salaries keep up with inflation and add staffing in several areas.
State Representative Brian Lohse and State Senator Julian Garrett, the top Republicans on the Justice Systems Appropriations subcommittee, worked with the governor's staff and settled on an operating budget of $194,469,897. That would have been "a net increase of $4,369,347 compared to estimated FY 2023," and was the appropriation included in a bill published on Friday, April 28. In accordance with a five-year plan, it had language adding more four district associate judges and support staff.
Text messages that Bleeding Heartland obtained through a public records request show that late on that Friday afternoon, Reynolds' legislative liaison Molly Severn called Lohse. She said the governor wanted $2.5 million moved out of the operating funds for the judicial branch and added to the fiscal year 2024 budget for the Iowa Department of Public Safety—which was already getting a big spending boost.
The messages are consistent with what Lohse told Iowa House members when floor managing the appropriations bill on May 3. In "negotiations with the governor's office," he said, it became clear the governor preferred a $1.9 million budget increase for the judicial branch operating budget, with no raise for judges.
Lawmakers and the governor's staff "finally arrived after much negotiation" on a bill that increased the judicial branch appropriation by $3.25 million compared to FY2023. The Senate amended and passed the appropriations bill on May 2. The House approved the bill the next day.
The upshot is that between April 28 and May 2, the judicial branch operating budget was reduced by about $1.1 million (from $194,469,897 to $193,350,550), because the governor insisted on it.
According to Lohse, the courts requested a pause in the five-year plan to increase district associate judges, "simply because a $3 million increase is not enough to fund" those positions. He said he had spoken to current and former colleagues over the weekend, who advised him to "take the win, even if it's not the win you want. And this is certainly not the win I wanted. It was not the win, I believe, that Senator Garrett wanted. But this is the win that we got, and it is as much as we got, and we hope to do better next year."
The governor's staff did not respond to Bleeding Heartland's inquiries about why Reynolds sought to move funds from the judiciary to the Department of Public Safety.
Within Iowa's legal community, the last-minute cut was perceived as retribution for one or more court rulings that angered the governor. (She's known to hold grudges.)
On April 14, the Iowa Supreme Court unanimously ruled in favor of plaintiffs (including myself) who had sued the governor's office over open records violations. On April 28, a unanimous Iowa Supreme Court ruled in favor of environmental groups against the Iowa Utilities Board. And on that same day, a few hours before Severn called Lohse, a Polk County District Court judge published a ruling in favor of the Sierra Club Iowa chapter. He held that the Iowa Department of Natural Resources had improperly approved a cattle feedlot's nutrient management plan near a high-quality trout stream.
It's also possible that Reynolds didn't appreciate how the Supreme Court made sure the public knew she didn't receive permission to stroll through the justices' private work space before the oral arguments on the abortion law.
I don't mean to imply any disagreement over state funding would influence court rulings. But I see the budget cut as one piece of a larger picture: this Republican governor has developed an adversarial posture toward an Iowa Supreme Court that for the first time in 20-plus years is comprised entirely of Republican appointees.
Jeff Morrison is the latest columnist to join the Iowa Writers Collaborative, with “Between Two Rivers.” All of these newsletters are available for free, or you can choose to support the writer with a paid subscription.
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Thank you again for the deep dive, Laura. Is your head about to explode?
Excellent insights! Thank you!