Iowa Supreme Court Allows Six-Week Abortion Ban to Take Effect

The Iowa Supreme Court ruled Friday that the state’s “fetal heartbeat” law, which bans abortion after around six weeks of pregnancy, does not violate the state constitution. This is the latest development from a court that has swung dramatically on the issue, ruling in 2018 that abortion was a fundamental right, only to reverse itself in 2022.

The current case addresses a 2023 law, which prohibits abortion when there is a “detectable fetal heartbeat.” (The American College of Obstetricians and Gynecologists disputes that “fetal heartbeat” is a useful concept, given how cardiac activity develops in fetuses.) The statute includes exceptions that allow an abortion after that time to “preserve the life of the pregnant woman,” where fetal abnormalities “incompatible with life” are present, or in cases of rape or incest — provided the rape or incest has been reported to authorities within a certain amount of time after the incident.

Abortion providers sued to block enforcement of the law, arguing that the statute violated the state constitution’s due process clause, equal protection provision, and guarantee of “certain inherent and inalienable rights among which are life, liberty and the pursuit of happiness.” The 4–3 ruling upholding the law reverses a lower court’s temporary injunction. With the injunction preventing enforcement of the six-week ban, abortions in Iowa were available until around 22 weeks.

The decision turned on the proper standard of review for laws restricting abortion, or how closely a court should scrutinize such laws.

The plaintiffs asked the court to consider whether the law placed an “undue burden” on women seeking abortions, the standard that applied in federal abortion litigation before the U.S. Supreme Court declared in Dobbs v. Jackson Women’s Health Organization that the U.S. Constitution does not protect abortion rights. The state argued that the law should stand so long as lawmakers had a “rational basis” for passing it — the standard most deferential to the government.

The court held that rational basis review was proper. “We conclude that the fetal heartbeat statute is rationally related to the state’s legitimate interest in protecting unborn life,” Justice Matthew McDermott wrote for the majority. Applying the new test, the court held the district court erred in issuing the injunction.

The dissent criticized the majority’s reliance on history in determining the scope of abortion rights. “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,” Chief Justice Susan Christensen wrote in a dissent. “Generations of women in Iowa faced multiple layers of exclusion and discrimination. . . . So is it any wonder why Iowa is not flush with legal history demonstrating that a medical procedure specific to women is a deeply rooted part of our state’s tradition?”

Over the last few years, the Iowa high court has issued diverging rulings on abortion restrictions — and what level of scrutiny should apply to such laws. In 2015, the court held that a restriction on telemedicine abortions violated the undue burden standard. Because the state conceded that the Iowa Constitution protected abortion to the same extent as the federal constitution, the court reasoned, the federal standard applied. Three years later, the court declared that abortion was a fundamental right under the due process and equal protection clauses of the state constitution and used the most rigorous form of judicial review, strict scrutiny, to strike down a 72-hour waiting period. In that 5–2 opinion, then-Chief Justice Mark S. Cady elaborated on the need for abortion to fulfil constitutional obligations:

Implicit in the concept of ordered liberty, we recognize today, is the ability to decide whether to terminate a pregnancy. . . . Without the opportunity to control their reproductive lives, women may need to place their educations on hold, pause or abandon their careers, and never fully assume a position in society equal to men, who face no such similar constraints for comparable sexual activity. Societal advancements in occupational opportunities are meaningless if women cannot access them. Policies that make education more affordable are meaningless if women are kept out of reach.

In the four years since that holding, however, four new justices joined the state high court.

In 2022, hearing a challenge to a mandatory 24-hour waiting period, the court reversed itself, announcing that there was no fundamental right to abortion in the state constitution. Three new justices — Matthew McDermott, Christopher McDonald, and Dana Oxley — joined the majority that overruled the 2018 case. The court declined to adopt a new standard of review for laws restricting abortion. 

A few days later, the U.S. Supreme Court decided Dobbs. The state immediately asked a lower court to undo a 2019 injunction against a previous fetal heartbeat law. The lower court refused, saying it lacked authority to do so, and that even if it could consider the case, the injunction should stand under the undue burden test. The state appealed, and Oxley — considered a likely vote to undo the injunction — recused herself from the case because her former law firm had been involved in the litigation. The remaining justices divided 3–3 on in the case, leaving the injunction in place.

Writing for the justices who supported maintaining the injunction, Justice Thomas D. Waterman said that it would be “troubling" for the court "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.” Following the court’s deadlock, the legislature passed the fetal heartbeat law at issue in last week’s ruling.

Iowa’s is not the only state supreme court to uphold laws that bar abortion almost entirely or at six weeks of pregnancy, before most people know they are pregnant. State supreme courts in Florida, Idaho, Indiana, and South Carolina have rejected constitutional challenges to such laws. (Although Florida hasn’t directly considered the state’s 6-week ban, the court earlier this year declared there was no right to abortion in the state’s privacy clause and upheld a 15-week ban, which triggered the 6-week ban that is in effect today.) Supreme courts in other states that have near-total bans, like Texas, have declined to clarify what constitutes a medical emergency in which an abortion is permitted, leaving pregnant people and physicians without clarity about the circumstances under which such care may be provided without the possibility of prosecution.

With Friday’s ruling, Iowa becomes the 18th state to ban abortion at six weeks or earlier. Florida, Georgia, and South Carolina bar abortion after six weeks, while Alabama, Arkansas, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, and West Virginia have enacted near-total bans. Exceptions to the bans vary from state to state. 

This patchwork of extreme abortion restrictions has left pregnant people without access to medically necessary — sometimes life-saving — health care across large swaths of the United States. 

Kathrina Szymborski Wolfkot is the managing editor of State Court Report and a senior counsel in the Judiciary Program at the Brennan Center for Justice.