Two remarkable dissents highlight flaws in Iowa abortion ruling
Human cost, legal fallout
This post 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, including more coverage of efforts to restrict abortion, subscribe to the free Evening Heartland newsletter. If your email provider truncates this post, you can read the whole article without interruption at this link.
“Nothing promotes life like a forced hysterectomy preventing a woman from ever becoming pregnant again because she could not terminate a doomed pregnancy under the medical emergency exception,” wrote Iowa Supreme Court Chief Justice Susan Christensen near the end of her dissenting opinion in Planned Parenthood v Reynolds VI.
In that case, four Iowa Supreme Court justices ruled on June 28 that the state can enforce a near-total abortion ban (House File 732) while litigation proceeds in lower court. Reversing a Polk County District Court ruling, the majority determined the plaintiffs were not likely to succeed in showing the ban violates pregnant Iowans’ due process rights. The majority also declared that abortion restrictions are subject to “rational basis” review, which will make it far easier for the government to defend the law against the plaintiffs’ other constitutional claims.
Writing in dissent, the chief justice illuminated the suffering that will follow from this “giant step backward” for Iowa women. An equally remarkable opinion by Justice Edward Mansfield—the author of the 2022 decision that overturned Iowa’s abortion rights precedent—warned that the majority’s new approach to abortion cases “disserves the people of Iowa and their constitution.”
MAJORITY AFFIRMS ABORTION IS “NOT A FUNDAMENTAL RIGHT”
Here’s the full text of the majority opinion and dissents from Planned Parenthood of the Heartland v Reynolds VI, also known as PPH v Reynolds 2024. (The cases are distinguished by number or year, because this is the sixth abortion-related case Planned Parenthood has brought against the state of Iowa over the past decade.)
Justice Matthew McDermott wrote for the majority, joined by Justices Christopher McDonald, Dana Oxley, and David May. Governor Kim Reynolds appointed all four to the high court.
The decision followed the same logic as non-binding opinions Justices McDermott and McDonald wrote last year, when the Iowa Supreme Court deadlocked on whether to allow an earlier version of the abortion ban to take effect. Justice Oxley recused herself from that case (known as PPH V or PPH 2023) and provided the tie-breaking vote for the state in the latest decision.
The majority opinion rested primarily on the point Solicitor General Eric Wessan hammered home during the oral arguments in April. For due process claims, strict scrutiny (the highest bar for the government to clear) applies if the challenged law implicates a fundamental right. “But if the right at stake is not a fundamental right, then we apply the rational basis test and determine whether the law is rationally related to a legitimate state interest.”
That approach leaves no room for an intermediate level of scrutiny, which would balance the state’s interest in preventing abortions against the liberty interests of pregnant Iowans. For decades, courts across the country applied that kind of test when they considered whether state abortion restrictions posed an “undue burden” on those seeking to terminate a pregnancy.
Justice McDermott repeatedly referenced the court’s majority opinion in PPH IV or PPH 2022, which overruled a 2018 abortion rights holding. In his words, the court’s majority in 2022 “declared abortion was not a fundamental right under the due process clause of Iowa’s Constitution.” (As will be discussed below, the author of the 2022 opinion considers that description “simply wrong.”)
The June 28 holding also asserted that when a right is not enumerated (specifically named in the constitution), courts should consider whether that right is “deeply rooted” in our “history and tradition” and “implicit in the concept of ordered liberty.” But a “right to an abortion, as the historical record shows, is not rooted at all in our state’s history and tradition, let alone ‘deeply’ rooted.”
Therefore, abortion is not a fundamental right, rational basis applies, and the state need only show some legitimate interest the law advances (in this case “protecting unborn life”). Concerns of Iowans who do not want to continue their pregnancy are immaterial—even though House File 732 prohibits abortions before many people would realize they were pregnant.
The majority opinion considered only the due process claim, because that was the sole basis for the lower court’s injunction. The plaintiffs—Planned Parenthood of the Heartland, the Emma Goldman Clinic, and Dr. Sarah Traxler—also argued that House File 732 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. But the Iowa Supreme Court majority declined to consider those claims at this stage, since Planned Parenthood did not advance those arguments on appeal.
The plaintiffs may pursue their inalienable rights or equal protection claims when the case goes back to Polk County District Court. (ACLU of Iowa legal director Rita Bettis Austen declined to discuss litigation strategy during a June 28 news conference.)
Regardless of how the case develops, the state will be able to ban almost all abortions after embryonic cardiac activity can be detected (which often happens around six weeks) as soon as the District Court lifts the temporary injunction. That will likely happen soon after July 19.
DISSENT SLAMS “RIGID APPROACH” GROUNDED IN “MALE-DOMINATED HISTORY”
It should surprise no one that Chief Justice Christensen disagreed with the majority here. Reynolds’ first Iowa Supreme Court appointee dissented from the 2022 decision that allowed the state to enforce a 24-hour waiting period (a much less severe restriction). The chief justice joined Justice Thomas Waterman’s non-binding opinion in 2023, which held that the 2018 version of the misnamed “fetal heartbeat” law presented an undue burden on Iowa women. And during this year’s oral arguments, she characterized some of the new law’s exceptions as “unrealistic” and “more or less shutting the door” on abortion in cases of rape or incest.
That said, the chief justice’s 32-page dissent (joined by Justices Waterman and Mansfield) used surprisingly sharp language as it eviscerated the majority holding and the underlying abortion ban.
First, the opinion rejected the main premise underlying the majority opinion: that abortion rights aren’t grounded in Iowa history or tradition. Echoing then Justice Brent Appel’s epic dissent from 2022, Chief Justice Christensen noted, “The majority’s rigid approach relies heavily on the male-dominated history and traditions of the 1800s, all the while ignoring how far women’s rights have come since the Civil War era.” She called for interpreting the Iowa Constitution “through a modern lens,” rather than the 19th-century reality when women couldn’t vote, much less participate in drafting laws or the constitution.
While acknowledging that Iowa has made “great strides” towards women’s equality, “this statute—and the majority’s decision allowing it to take effect—not only brings that progress to a halt but also takes a giant step backward.” Pulling no punches:
By exclusively relying on the text of our constitution that was adopted in 1857 and our state’s history and tradition to conclude that abortion is not a fundamental right, the majority perpetuates the gendered hierarchies of old when women were second-class citizens.
The chief justice also noted that the majority left out another aspect of that history: since the territorial law of the 1840s, Iowa has allowed abortion “to preserve the life of the mother.” In contrast, “the statute at issue today does not give physicians this same professional latitude in their decision-making. Nor does it give many pregnant women any meaningful opportunity to terminate a pregnancy when it threatens their health or ability to carry a child to term in the future.”
“THE RIGHTS OF IOWANS DID NOT FREEZE”
The chief justice opposed abandoning the 2018 precedent (which called for subjecting abortion regulations to strict scrutiny). Since no party in the current case was asking the Iowa Supreme Court to apply strict scrutiny, she favors intermediate scrutiny using the “undue burden” standard the U.S. Supreme Court established in Casey.
It is painfully apparent to me that the majority misapprehends the nature of the liberty at issue here. It is not whether abortion, with the polarizing reactions it evokes, is a fundamental right but rather whether individuals have the fundamental right to make medical decisions affecting their health and bodily integrity in partnership with their healthcare provider free from government interference.
The majority makes much of the fact that the Iowa Constitution doesn’t refer to abortion, and state law criminalized the practice for more than a century. But Chief Justice Christensen pointed out, “Other procedures affecting bodily integrity and medical care that are not specifically mentioned in our constitution include organ transplants and blood transfusions. Like abortion, some religions oppose or ban these medical practices,” but the state would not say individuals should not be able to choose those procedures.
While history and tradition can be informative, “the rights of Iowans did not freeze once our state constitution took effect. Today’s decision risks limiting our interpretation to conditions as they existed in the mid-19th century, eliminating rights from our constitution in the process.” For that reason, the dissent warned, “today’s ruling casts doubt on the stability of rights like contraception, interracial marriage, and same-sex marriage should constitutional challenges to these rights come before us.”
“THIS STATUTE PRIORITIZES THE UNBORN OVER THE LIVING”
The longest section of the dissenting opinion deals with the abortion ban’s exceptions for rape, incest, fetal abnormalities “incompatible with life,” miscarriages, or medical emergencies. The chief justice rightly sees them as “unattainable for many pregnant women and girls”; “they are crafted in such a way that the application rings hollow.”
Frankly, in many of these situations, they serve as another example of how this statute prioritizes the unborn over the living, placing pregnant women in grave harm in the process.
Bleeding Heartland covered some of the problems with the “exceptions” here and here. Chief Justice Christensen explained in practical terms why the rape and incest exceptions put “significant barriers” in front of sexual assault or abuse victims “by requiring actions that are unrealistic and unfair,” especially for children. The statute also forces physicians to make difficult judgments about such crimes, knowing they are jeopardizing their careers if they guess wrong.
A PREGNANT WOMAN “AS LITTLE MORE THAN A MEANS TO AN END”
As for the poorly defined “medical emergency” exception, the chief justice observed that it “pits the life of the mother against the life of the fetus. In doing so, it treats the pregnant woman as little more than a means to an end and ignores the mother’s crucial role in carrying that potential life to term.” The dissent cited examples from other states where abortion bans are in effect, and women have been unable to access abortions in emergencies that threatened their lives or future fertility.
The dissent also noted that the abortion ban will undermine maternal health care more broadly by driving physicians out of the state and discouraging others from coming here to practice. Other abortion ban states have already experienced those trends. “This should be cause for concern in Iowa, where we already rank dead last with the fewest OB-GYNs per capita of any state, and many pregnant women face long drives to receive the medical care they need. […]
“To be clear, this trend will affect all pregnant women in Iowa—not just those seeking an abortion.”
The Iowa Code section defining medical emergency in the abortion context excludes “psychological conditions” and “emotional conditions.” Meanwhile, Chief Justice Christensen pointed out, the U.S. Centers for Disease Control has found that “nearly 23% of pregnancy-related deaths are attributed to mental health conditions that include suicide and overdose or poisoning related to substance use disorder.”
A pregnant woman’s health complications can lead to death or permanent disability, possibly leaving her unable to care for children she already has. “Nevertheless, this statute treats her life as an afterthought.”
Furthermore: “In virtually any other medical setting, a competent nonpregnant person experiencing medical complications may collaborate with their physician to make an informed decision about their course of treatment.” But bans like Iowa’s give the physician control over whether to act in a medical emergency—unless the patient can travel to another state where abortion is legal.
FETAL ABNORMALITY EXCEPTION “LARGELY UNUSABLE”
In theory, Iowa’s law allows termination in the case of a fetal abnormality “incompatible with life.” As Bleeding Heartland has previously discussed, that’s not a medical term or consistent with standard medical practice. Moreover, the exception doesn’t apply after the 20-week mark, when many fetal anomalies are diagnosed.
Chief Justice Christensen explained why this provision will be “largely unusable”:
Finding out that a baby so desperately wanted will not survive birth is certainly heartbreaking. The twenty-week limit on the fetal abnormality exception has the callous potential to make an incredibly difficult situation even worse by forcing pregnant women to carry their doomed pregnancies to term with the pain of knowing their fetus will not survive.
This is already happening in other states with comparable exceptions.
The dissent questioned the state’s claim to have a “vital interest in protecting unborn human life at all stages of development.” Why are abortions allowed for non-survivable fetal conditions before 20 weeks, but not after?
Both situations involve fetuses with abnormalities incompatible with life, and nothing in the record demonstrates why a pregnant woman is only allowed to end this doomed pregnancy before twenty weeks. In any event, there is no unborn life to protect when a fetus has an abnormality incompatible with life.
Chief Justice Christensen also speculated that the statute’s poorly crafted “twin exception” (allowing abortions after 20 weeks if “necessary to preserve the life of an unborn child”) may create problems for in vitro fertilization programs in Iowa.
“NOTHING PROMOTES LIFE LIKE A FORCED HYSTERECTOMY”
Many news reports about the Iowa Supreme Court ruling quoted from the final section of the chief justice’s dissent, especially this paragraph full of righteous anger.
In my opinion, the only female lives that this statute treats with any meaningful regard and dignity are the unborn lives of female fetuses. After that, this statute forces pregnant women (and young girls) to endure and suffer through life-altering health complications that range from severe sepsis requiring limb amputation to a hysterectomy so long as those women are not at death’s door. All in the name of promoting unborn life—or, more accurately, birth. Nothing promotes life like a forced hysterectomy preventing a woman from ever becoming pregnant again because she could not terminate a doomed pregnancy under the medical emergency exception.
Chief Justice Christensen closed with a warning to those who applaud the majority’s opinion because it aligns with their interests: “Today’s winners could very well be on the other side of the fence tomorrow. Although this fetal-heartbeat law most directly affects women, the ominous consequences of affirming this level of government intrusion will negatively impact all current and future Iowans in one way or another.”
The second dissent, authored by Justice Mansfield and joined by the chief justice and Justice Waterman, addressed some additional legal questions and bodily autonomy more broadly.
“THE COURT AROUND ME HAS SHIFTED”
Justice Mansfield began by citing his dissent from the 2018 ruling. He has called that majority decision “one-sided” and still believes it didn’t properly acknowledge “that there are two profound concerns—a woman’s autonomy over her body and human life.”
All five justices who agreed that the Iowa Constitution protects a fundamental right to abortion, subject to strict scrutiny, are gone. Justice Bruce Zager retired from the high court weeks after the abortion rights opinion came out. Justice Daryl Hecht stepped down in late 2018 while terminally ill with cancer. Chief Justice Mark Cady (who wrote the landmark decision) died suddenly in late 2019. Justice David Wiggins retired in early 2020. And Justice Brent Appel hit the mandatory retirement age in the summer of 2022, weeks after dissenting from the abortion rights reversal.
If any one of those jurists were still on the bench, the state would not be able to enforce the new abortion ban.
Justice Mansfield observed in his latest dissent, “the court around me has shifted. So, instead of a constitutional rule that gives no weight to the State’s interest in human life, we now have in Iowa a constitutional rule that gives no weight to a woman’s autonomy over her body.”
“THE SAME TEST WE APPLY TO TRAFFIC CAMERAS”
Justice Mansfield applied the undue burden test in his 2018 dissenting opinion, but didn’t depict that approach as the permanent standard. He wrote at that time, “I would apply Casey under the Iowa Constitution, at least until the [U.S.] Supreme Court offers a different legal standard for our consideration.”
In his 2022 abortion opinion, Justice Mansfield suggested the proper standard of review was not a settled question. A plurality of three justices left the Casey undue burden test in place, while inviting parties to litigate that issue further.
A preference for the balancing test emerged as the high court considered the 2023 abortion case. During oral arguments, Justice Mansfield asked the state’s attorney whether a mandatory vaccination law would be subject to rational basis review. He later signed on to the non-binding opinion by Justice Waterman, which stated that the undue burden standard “is the current law in Iowa.” That opinion left the door open, though: “In future cases involving new abortion laws, the parties are free to argue for a change in the current undue burden standard, and this court will consider it.”
Justice Mansfield is firmly in the undue burden camp now. The second paragraph of his dissent underscored the ridiculousness of applying rational basis review to a law that gives pregnant Iowans no control over their own destiny.
I believe that subjecting a near-total ban on abortion to a rational basis test—the same test we apply to traffic cameras, and a more forgiving test than the one we apply to a law not allowing county auditors to correct defective absentee ballot applications—disserves the people of Iowa and their constitution.44 The liberty protected by article I, section 9 of the Iowa Constitution includes a woman’s ability to make decisions regarding her own body, just as it includes rights of procreation, parenting, and to use contraception.
The next page makes the point more forcefully:
Iowa recognizes a host of freedoms: the freedom to bring a loaded firearm into a government building, the freedom to ride a motorcycle without a helmet, the freedom to use cannabidiol for untested and unproven medical purposes, and the freedom to throw evidence of a crime into a trash can and not worry about the police retrieving it.46 Everyone is free, except for the 600,000 Iowa women of childbearing age who will have no legal option in our state but to carry a pregnancy to term in most circumstances.
Understandably, media coverage of abortion bans often focus on particularly tragic cases: children forced to bear their abuser’s child, women nearly dying after delayed care, or women forced to stay pregnant for months and go through labor, only to watch their newborn die immediately.
I appreciate that Justice Mansfield endorsed reproductive freedom for everyone who can get pregnant, not only for those facing the most horrific situations.
The inconvenient truth, however, is that Iowans are losing that freedom because of the court’s abortion reversal two years ago.
“SIMPLY WRONG”
Justice Mansfield objects to how the current majority interpreted his opinion in the 2022 case. “[M]y colleagues contend that we previously held in 2022 that abortion is not a fundamental right under the Iowa Constitution. That’s simply wrong, and repeating that assertion five times, as the majority does in the course of its opinion, doesn’t make it any more true.”
His dissent quotes from page 8 of that 2022 opinion: “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.” Other passages in that ruling recognized legitimate interests on both sides of the abortion debate.
Justice Mansfield made the same point when sparring with the state’s attorney during the oral arguments for the 2023 abortion case, “I think every time I said we’re not recognizing anymore what we said in Planned Parenthood II [the 2018 abortion case] that it’s a fundamental right subject to strict scrutiny. I think I always tied those two phrases together. It was the strict scrutiny part that I thought we were overruling in Planned Parenthood IV.”
Unfortunately, other portions of the 2022 majority opinion didn’t make that subtle distinction. On page 55, Justice Mansfield wrote, “Textually, there is no support for PPH II’s reading of the due process clause as providing fundamental protection for abortion.” Further down the same page: “Historically, there is no support for abortion as a fundamental constitutional right in Iowa.”
Going back to the dissent from that 2018 holding: on page 69, Justice Mansfield examined the history of the equal protection and due process clauses of the Iowa Constitution, concluding, “Neither provision as worded or as originally understood supports a right—let alone a fundamental right—to terminate a pregnancy.”
Granted, the 2018 case was about a 72-hour waiting period—a significant barrier, but nothing like the ban that’s about to be forced on Iowans. Reasonable minds could differ over whether a waiting period presents an undue burden for someone wanting to terminate a pregnancy. What’s missing from that dissent is a direct statement that the Iowa Constitution protects bodily autonomy as a fundamental right.
The point comes through loud and clear in the new dissent.
“REGARDLESS OF ORIGINAL INTENT”
Since Governor Terry Branstad appointed him in 2011, Justice Mansfield has been the Iowa Supreme Court’s leading “originalist.” He has often written about what the framers of Iowa’s constitution intended. That analysis informed his dissent from the 2018 abortion rights ruling.
So it was stunning to read in his latest opinion, “Whatever may have been the scope of article I, section 9 in 1857, today it protects an individual’s right to make personal decisions regarding procreation and parenting.”
He went on to declare in a section heading, “Regardless of Original Intent, There Is Today a Substantive Due Process Right to Make Decisions Concerning Procreation, Parenting, and One’s Own Body.” Iowa Supreme Court holdings have recognized a right not to provide a blood sample, to refuse medical treatment, to control access to one’s own children, to make decisions about using frozen embryos, as well as the right to procreate (in a case brought by a pregnant employee seeking a workplace accommodation).
In that context, Justice Mansfield wrote, “I fail to see how a woman’s right not to procreate can have no constitutional protection under the due process clause of article I, section 9. The decision not to have children is as fundamental as the decision to have children.” Everyone in the reproductive rights community would agree.
The dissent later noted, “While originalism is an important tool in constitutional interpretation, it has its limits when considering a woman’s rights relating to her body, sex, and procreation. Do originalists really believe that a woman has the same constitutional right of autonomy over her body today as in 1857? Really?” (That’s essentially what Justice Appel argued two years ago: “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.”)
Recalling a point he raised during oral arguments in April, Justice Mansfield mentioned some outdated criminal statutes from the 1850s and 1860s. They would be “unthinkable” today: “We would view laws criminalizing cohabitation and adultery as worthy of the Taliban, and would almost certainly hold that they denied liberty without due process in violation of article I, section 9.”
The dissent later noted, “The six-week mark does not allow enough time for a woman to make a decision whether or not to carry a pregnancy to term. The adoption of this timing is not accidental: Iowa Code chapter 146E is designed to end, and will end, most abortions in Iowa. Therefore, the law is an undue burden on a woman’s constitutional right to exercise autonomy over what happens within her body and to decide whether or not to have a child.”
And on the final page: “In the end, the question in this case is whether a woman has a constitutional right of autonomy over her body as part of the due process guarantee of liberty. If she does, and I believe she does, then a law that takes away any realistic opportunity to decide not to carry a pregnancy to term violates article I, section 9.”
If the 2022 decision had been framed that way, Republican lawmakers and Governor Reynolds might never have tried to reinstate the 2018 abortion ban, or pass a nearly identical bill last year.
Perhaps the 2022 decision had to hedge in order to keep Justice Oxley on board with what became the plurality opinion, leaving the undue burden standard in place temporarily. She’s in the rational basis camp now. If she had sided with Justices McDermott and McDonald two years ago, their view that the court should “emphatically reject—not recycle—Casey’s moribund undue burden test” would have become the plurality as the court reversed the 2018 precedent.
Speaking of which…
A BETTER TIME TO CHANNEL JOHN ROBERTS
Justice Mansfield’s dissent praised U.S. Supreme Court Chief Justice John Roberts’ concurring opinion in Dobbs. He would not have overturned the Roe v Wade or Casey precedents, but he would have upheld Mississippi’s 15-week abortion ban on the grounds that it doesn’t place an undue burden on women. Although such a law does restrict abortion prior to viability (the point at which a fetus could survive outside the womb), Chief Justice Roberts believed it provided “a real choice” to those wanting to terminate a pregnancy.
Similarly, Justice Mansfield wrote, he “would evaluate state regulations and restrictions on abortions before the sixteenth week using intermediate scrutiny and the Casey undue burden standard.” After that point, the state could ban abortion “in the absence of a special circumstance.”
A better example to emulate would have been Chief Justice Roberts’ concurrence in a 2020 case known as June Medical Services v. Russo. The chief joined the four liberal justices to strike down a Louisiana law imposing requirements on doctors who perform abortions. The law in question was “almost word-for-word identical” to the Texas law struck down in the U.S. Supreme Court’s Whole Women’s Health decision from 2016.
The chief justice dissented from Whole Women’s Health and wrote in 2020 that he still believed that “case was wrongly decided.” However, he followed the stare decisis doctrine, which “requires us, absent special circumstances, to treat like cases alike.”
If Justices Mansfield and Waterman had taken that cue, they could have joined Chief Justice Christensen in 2022 to strike down the 24-hour waiting period, following the PPH 2018 finding on a similar law. Like the Louisiana lawmakers who hoped a more conservative SCOTUS would let their copycat law stand, Iowa Republicans pushed the 24-hour waiting period through after Reynolds had appointed four new justices.
As Iowa’s chief justice wrote in 2022, “This rather sudden change in a significant portion of our court’s composition is exactly the sort of situation that challenges so many of the values that stare decisis promotes concerning stability in the law, judicial restraint, the public’s faith in the judiciary, and the legitimacy of judicial review.”
Following precedent would have been a tough pill to swallow for Justices Mansfield and Waterman, who believe undue burden (not strict scrutiny) should be the standard of review for abortion regulations.
If they had resisted the temptation to overturn an important precedent after just four years, some 600,000 Iowans would still have the rights they enjoyed for 51 years.
The Iowa Writers Collaborative has three new members: Taylor Deckert, who writes Taylor’s Millennial Mindset, Bill Tubbs (Impressions), and Dennis Goldford (Let’s Talk Politics).
If you aren’t already receiving the Sunday morning roundup, which links to recent posts by all of our columnists, sign up here. It’s free!
We are proud to have an alliance with Iowa Capital Dispatch.
A great analysis. Thank you to Chief Justice Christensen. I still agree with the courts 2018 decision written by my late husband.
Thank you for your continued good work to keep us informed about what is going in our state government, Laura. Chief Justice Christensen's dissent spoke for many people in Iowa and I am glad your took the time to walk us through it.