Iowa Supreme Court Issues Rare 3–3 Decision, Declines to Reinstate Abortion Law

Iowa Gov. Kim Reynolds speaks at a campaign event for Sen. Joni Ernst (R-Iowa) at Dahl Auto Museum as part of Ernst's RV tour of Iowa, in Davenport, on Oct. 31, 2020. (Mario Tama/Getty Images)

The Iowa Supreme Court, in a 3–3 decision, declined to reinstate a six-week ban on abortions that was backed by the state’s governor.

A 2019 district court nullified the state’s previous six-week ban on the procedure, with a Polk County District Court judge ruling that the ban was unconstitutional based on state and federal law. The case was taken up last year after the U.S. Supreme Court overturned Roe v. Wade, ending federal protection of the procedure.

After the Supreme Court overturned Roe v. Wade last year, Gov. Kim Reynolds immediately sought to revive the law. The blocked law barred abortions once cardiac activity can be detected, coming usually around six weeks of pregnancy.

With the 3–3 Iowa Supreme Court ruling, abortions will remain legal in Iowa up to 20 weeks of pregnancy. If the Supreme Court decided in favor of the ban, the state would have joined other states that have passed similar “heartbeat” measures, including Texas, Alabama, Missouri, Georgia, North Dakota, Louisiana, Missouri, and Kentucky.

South Carolina and Ohio have passed similar bans on abortions. Both are currently facing court challenges.

The Iowa law contains exceptions for medical emergencies, including threats to the mother’s life, rape, incest, and fetal abnormality.

Writing for the three justices who denied Reynolds’s request to reinstate the ban, Justice Thomas Waterman argued that reinstating the measure would mean bypassing the state legislature and would change the standard for how the high court reviews laws.

“In our view it is legislating from the bench to take a statute that was moribund when it was enacted and has been enjoined for four years and then to put it in effect,” Waterman wrote, according to reports.

After Iowa appealed the Polk County court’s 2019 ruling, it “now asks our court to do something that has never happened in Iowa history: to simultaneously bypass the legislature and change the law, to adopt rational basis review, and then to dissolve an injunction to put a statute into effect for the first time in the same case in which that very enactment was declared unconstitutional years earlier,” Waterman also wrote.

On the other side, Justice Christopher McDonald argued that it was “inequitable to continue to enjoin the state from enforcing a law that is now presumptively constitutional.”

“When a case adjudging a statute unconstitutional is overruled, the statute becomes operative without reenactment. This has been ‘well settled’ law in this state for more than a century,” McDonald wrote. “There is no ‘legal uncertainty’ under Iowa law; there is only my colleagues’ refusal to apply ‘well settled’ Iowa law.”

Governor Responds

Following the decision, Reynolds criticized the court and said it failed to exercise its authority. She promised that the “fight is not over” and would consider her options, without elaborating.

“To say that today’s lack of action by the Iowa Supreme Court is a disappointment is an understatement,” the Iowa Republican said in a statement. “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.”

In her statement, Reynolds added that 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.”

Pro-abortion group Planned Parenthood praised the court decision, writing on Twitter that the “Iowa Supreme Court just preserved abortion access in Iowa by blocking a near-total abortion ban from taking effect.”

While the state’s high court maintains the block on the law, it does not preclude Reynolds and lawmakers from passing a new law that looks the same.

Republicans hold large majorities in the state House and Senate, and leaders of both chambers criticized the ruling and suggested they will work toward passing new legislation.

“Senate Republicans have a consistent record of defending life, including the passage of the Heartbeat Bill,” Senate Majority Leader Jack Whitver said in a statement. “We will work with Governor Reynolds and the House to advance pro-life policies to protect the unborn.”

The last time the court issued an opinion in an evenly split decision was in 2009. Since then, it has issued 18 divided rulings with no opinions attached, according to The Associated Press.

In a separate case, the Iowa Supreme Court decided last year to reverse an opinion saying the state’s constitution affirms a right to get an abortion. After Roe v. Wade was overturned a week later, Reynolds sought to dissolve the 2019 decision.

A state judge ruled last year that she had no authority to do so and Reynolds appealed to the state’s Supreme Court, which is now far more conservative than when the law was first passed. Reynolds appointed five of the court’s seven members.

The Associated Press contributed to this report.