State Constitutional Law - Abortion Law - Iowa Supreme Court Applies Strict Scrutiny to Abortion Restriction

Harvard Law Review, December 2018 | Go to article overview

State Constitutional Law - Abortion Law - Iowa Supreme Court Applies Strict Scrutiny to Abortion Restriction


STATE CONSTITUTIONAL LAW--ABORTION LAW--IOWA SUPREME COURT APPLIES STRICT SCRUTINY TO ABORTION RESTRICTION.--Planned Parenthood of the Heartland v. Reynolds, 915 N.W.2d 206 (Iowa 2018).

In Roe v. Wade, (1) the United States Supreme Court held that the fundamental right to privacy encompassed in the Fourteenth Amendment's liberty guarantee was "broad enough to encompass a woman's decision whether or not to terminate her pregnancy." (2) In Planned Parenthood of Southeastern Pennsylvania v. Casey, (3) the Court reaffirmed that the right to choose to have an abortion was constitutionally protected. (4) However, the Court sought to balance that right with the state's interest in "potential life" by articulating a new "undue burden" standard: the state may regulate abortions before the point of fetal viability unless the regulation "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion." (5) Recently, in Planned Parenthood of the Heartland v. Reynolds, (6) the Iowa Supreme Court returned to the strict scrutiny standard used in Roe to invalidate a statute imposing a seventy-two-hour waiting period for women seeking abortions, finding that it violated both the due process and equal protection clauses of the Iowa Constitution. (7) In choosing to apply strict scrutiny rather than the undue burden standard, the Iowa Supreme Court intended to replace a notoriously malleable standard with one that requires a more rigorous and objective review of abortion restrictions. This case indicates that subjectivity can pervade strict scrutiny, and therefore that the higher standard does not resolve subjectivity problems in all cases. However, strict scrutiny is still a more objective test than the undue burden standard, and its application in abortion cases provides stability and protection to a fundamental right.

In April 2017, the Iowa legislature passed Senate File 471 ("the Act"), which mandated that women wait seventy-two hours after their informational appointment before receiving an abortion. (8) Planned Parenthood of the Heartland (PPH) moved for a temporary injunction to prevent the statute from going into effect, arguing that it violated the due process and equal protection clauses of the Iowa Constitution. (9) The district court denied the injunction, but the Iowa Supreme Court rapidly granted PPH's interlocutory appeal, staying the Act's enforcement pending a district court trial. (10)

The district court held that the Act did not violate the Iowa Constitution. Pointing to several studies, the court found that the state's purpose--to promote childbirth--was adequately served by the policy, and that the burden on women seeking abortion was not great, given that the court found no evidence that the Act would cause clinics to close. (11) On this basis, the district court held that the statute violated neither the due process nor the equal protection clause of the Iowa Constitution. (12)

The Iowa Supreme Court reversed. (13) Writing for the majority, Chief Justice Cady (14) noted the court's "ultimate authority" to interpret constitutional guarantees designed to "limit the power of the majoritarian branches of government." (15) With that in mind, the Chief Justice reviewed the record below, including PPH's pre-abortion protocols (16) and data concerning access to abortion care in Iowa prior to the Act. (17) The court listed limited obstetrician and gynecologist access, (18) cost, (19) distance, (20) and domestic violence and sexual assault (21) as factors limiting abortion access in the state. Chief Justice Cady then used hypothetical sample patients from different Iowa cities to illustrate the additional burdens for patients under the Act. The waiting period would require them to make two trips to their provider (22) and incur extra, potentially cost-prohibitive financial burdens, (23) and could delay them beyond the twenty-week cutoff. (24)

Although Reynolds was a facial challenge, for which a petitioner must normally prove that a statute is "incapable of any valid application," (25) the court noted that Casey considered the law as applied to "the group for whom the law is a restriction, not for whom the law is irrelevant," (26) and that "[t]here are few hurdles that are of level height for women of different races, classes, and abilities. …

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