What’s the status of Iowa’s near-total abortion ban?

Three weeks after the Iowa Supreme Court ruled that the state must be able to maintain a near-total ban on abortion, the law remains at a standstill.

Polk County District Court Judge Jeffrey Farrell said during a virtual conference on July 19 that the Iowa Supreme Court had not yet issued an order sending the case back to the district court, which must happen before the judge can lift a temporary injunction on the abortion ban (House File 732).

Under Iowa’s rules of civil procedure, the high court cannot transfer a case to a lower court within the first 21 days after a Supreme Court ruling (that period ends July 19), or “while a properly filed petition for review” is pending. The plaintiffs in the case — Planned Parenthood of the Heartland, the Emma Goldman Clinic and Dr. Sarah Traxler — filed a petition for review on July 11. They gave three reasons why the majority of the Iowa Supreme Court should have let the injunction stand while the lawsuit proceeds.

It is unclear when the Supreme Court will grant or deny the request for review. The court rarely grants such requests and rarely makes significant changes to decisions already published.

Plaintiffs ask for notice before abortion ban is enforced

At the July 19 conference, attorney Peter Im of Planned Parenthood Federation of America raised the plaintiffs’ concerns about the timing, assuming the Iowa Supreme Court orders the lower court to lift the injunction. Lack of notice about when the state will begin enforcing the law could cause medical problems for patients, he noted. That could impact not only Planned Parenthood facilities and the Emma Goldman Clinic, but also hospitals and health care providers across the state, he said.

Many patients who had planned to continue their pregnancies develop conditions that are typically treated with abortion (such as premature rupture of the membranes), or discover that the fetus will never survive outside the womb. Neither House File 732 nor the Iowa Board of Medicine’s administrative rules specify what situations warrant an abortion under the “medical emergency” and “fetal abnormality” exceptions.

I also noted that if an abortion ban were to go into effect without warning, it could complicate the care of someone who had come to the emergency room on a weekend, or a victim of sexual abuse who was in the middle of a two-day procedure. Medical abortions, the most common method of ending a pregnancy, can take more than a day.

I said the plaintiffs want clarity on when the rescission will take effect, say before 9:00 a.m. on a certain date, so that affected Iowans have a few business days to plan.

On behalf of the state, Attorney General Eric Wessan asked the district court to lift the injunction as soon as possible once the Iowa Supreme Court transfers jurisdiction. Asked whether the state would object to the court giving any notice, Wessan said the Iowa Supreme Court had explained what the law is and that people are responsible for actions that could implicate the law.

Judge Farrell indicated that he might not be notified immediately once the Supreme Court hands over the case. He added that he did not think the justices would expect him to “drop everything” and immediately lift the temporary injunction on the abortion ban. While he did not make a final decision during the hearing, he characterized the plaintiffs’ request as “reasonable” and said he is inclined to give some notice about when the state can enforce the law.

PROCESS OUTLOOK UNCERTAIN

Because the Iowa Supreme Court has not ruled on the merits of the plaintiffs’ challenge to House File 732, it is likely that more lawsuits will follow once the case returns to the lower court. The four-justice majority rejected the argument that the abortion ban violates Iowans’ substantive due process rights, but did not rule on two other claims: that the ban violates the equal protection and inalienable rights clauses of the Iowa Constitution.

Judge Farrell said he will schedule a trial scheduling conference once he gains jurisdiction over the case. He would consider a motion for a temporary injunction, if plaintiffs file one based on equal protection or inalienable rights arguments. Otherwise, he will schedule a trial — decided by a judge, without a jury — to consider the merits of plaintiffs’ claims that the law is unconstitutional.

Wessan said that since the Iowa Supreme Court has held that the law is subject to rational basis review, the state believes the case can be resolved by summary judgment. That is, the court would rule on the basis of filed memos, without any trial.

RISK OF ‘DUPLICATIVE LITIGATION’

I have noted one unusual complication in this case, which plaintiffs noted in their petition for review.

When the district court blocked enforcement of House File 732, that order allowed the Iowa Board of Medicine to develop administrative rules to guide providers regarding the abortion restrictions. The board finalized those rules in April, and they are more detailed than the statute about exceptions for cases of rape, incest, fetal abnormality, miscarriage and medical emergencies.

Plaintiffs have indicated that they will argue that the law’s “inadequate exceptions” don’t even pass rational basis review. But under the Iowa Administrative Procedure Act, plaintiffs must challenge the Board of Medicine’s rules at the agency level (in this case, the Iowa Department of Inspections, Appeals, and Licensing) before going to court.

If the agency denied their petition, the plaintiffs could appeal to the district court. But that case could not be consolidated with the current lawsuit over House File 732.

The state’s request to allow the Board of Medicine to issue regulations regarding an otherwise prohibited law has created the potential for dual litigation that could lead to conflicting outcomes. Even if the statutory challenge to the ban and the petition for judicial review of the administrative challenge to the rule were before the same district judge, they could not be consolidated because the statutory challenge would proceed to trial, while the challenge to the rule would be in an appellate capacity.

The plaintiffs have asked the Iowa Supreme Court to “provide guidance to the district court in this case — and to future litigants, district courts, and agencies faced with similar situations — on how to proceed with concurrent challenges to the ban and the rule.”

Final note: Polk County rotates cases among district court judges each calendar year. Therefore, Judge Farrell is now hearing cases related to the abortion ban, even though Judge Joseph Seidlin issued the temporary injunction in July 2023.

This is the second major abortion case to come before Judge Farrell’s court. In 2014, he upheld an Iowa Board of Medicine rule that banned the use of telemedicine for abortions. The Iowa Supreme Court unanimously reversed that ruling in 2015, declaring the policy unconstitutional because it “imposed an unreasonable burden on a woman’s right to terminate her pregnancy.”

Appendix: The plaintiffs’ petition to the Iowa Supreme Court to dismiss the case, known as Planned Parenthood of the Heartland v. Reynolds VI