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Judge Upholds Iowa’s Forced 72-Hour Waiting Period

Imani Gandy

Attorneys for Planned Parenthood of the Heartland argued that the forced waiting period poses an undue burden on a pregnant patient’s right to due process under the Iowa Constitution.

After a two-day trial, a district court in Iowa on Tuesday upheld a state law that, among other provisions, requires a 72-hour waiting period for patients seeking abortion care.

SF 471, which then-Gov. Terry Branstad (R) signed into law on May 5, requires pregnant patients to certify 72 hours in advance of obtaining an abortion that they have undergone an ultrasound, that they have been given an opportunity to view and hear a description of the ultrasound image, and that they have received certain state-mandated materials.

Planned Parenthood of the Heartland (PPH), represented by Planned Parenthood Federation of America and ACLU Iowa, immediately filed for an injunction arguing that the GOP-backed law infringed on patients’ due process rights because it imposes an undue burden on their right to obtain abortion care. On the day Branstad signed the bill into law, the Iowa Supreme Court issued a temporary injunction blocking its enforcement while the case proceeded to trial.

Attorneys for PPH, during the two-day trial in July, argued that the forced waiting period poses an undue burden on a pregnant patient’s right to due process under the Iowa Constitution because it imposes an undue burden on patients seeking an abortion.

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Iowa Fifth Judicial District Court Judge Jerry Farrell, however, ruled that the law was constitutional. He found that there was no material distinction between Iowa’s informed consent law and Pennsylvania’s informed consent law at issue in the landmark U.S. Supreme Court case Planned Parenthood v. Casey in 1992.

“The Iowa Act is different from the Pennsylvania Act in that the mandatory delay is 72 hours rather than 24,” Farrell wrote in his order.

“PPH characterizes this difference as triple the delay, but the court does not find the extra two days to be material in light of the case law and the record.”

PPH contended that the court should apply a “strict scrutiny” standard because it brought the case under the Iowa Constitution, not the U.S. Constitution. Attorneys for the state argued that the federal undue burden standard applies to claims brought under the Iowa Constitution just as it applies to claims brought under the U.S. Constitution.

Judge Farrell sided with the state.

The Iowa Supreme Court had the opportunity to abandon the undue burden standard in 2015 when it considered for the first time whether the Iowa Constitution protects a person’s decision to terminate a pregnancy, Judge Farrell noted in his order.

In that case, Planned Parenthood of Heartland v. Iowa Board of Medicine, the Iowa Supreme Court ruled that a ban on abortion via telemedicine violated the Iowa Constitution. The state’s Supreme Court evaluated PPH’s state constitutional claims using the federal undue burden standard. If the court had not seen fit to abandon the federal undue burden test when considering Iowa’s telemedicine ban, there was no reason to abandon it when evaluating Iowa’s mandatory delay law, according to Judge Farrell.

“The undue burden standard has been in place for 25 years. It has been applied by a number of federal and state courts when considering other challenges to mandatory delay laws. While the Iowa Supreme Court could use a different legal standard under the Iowa Constitution in a future case, the court did not do so in 2015 when given the opportunity,” Judge Farrell wrote.

The court agreed with PPH that a 72-hour waiting period would force people to make two trips to a PPH clinic—one to get an ultrasound and certify to the informed consent and another for the procedure. The court acknowledged the financial hardships on Iowans who live farthest from a Planned Parenthood center and the impact on domestic abuse victims who might be forced to reveal their pregnancy to their abuser if required to make two visits to a clinic. The court likewise acknowledged that scheduling delays could result in a loss of the option to choose a medication abortion, which is safer.

The court nevertheless balanced those concerns against Iowa’s interest in potential life, an interest which it said “cannot be denied under the law” and found Planned Parenthood’s concerns on behalf of its patients wanting.

“The undue burden standard has been criticized, but it fairly balances the two competing interest of a woman’s right to choose an abortion versus the public’s interest in potential life,” Farrell wrote.

The court found that PPH had not met that standard.

Casey makes clear that the issue at stake is whether the burden serves as a substantial obstacle to a woman exercising her right to choose an abortion, and not whether there are additional costs imposed,” he wrote.

“There is no question that the second trip will have some impact on low-income women and those who have to drive longer distances. However, the fact that there is some burden is not dispositive if the Act does not place a substantial obstacle in the way of women getting an abortion .… There will be some costs and confidentiality concerns, but these are the same concerns that were considered and rejected in Casey.”

The court implemented a 30-day stay to give PPH time to appeal the ruling to the Iowa Supreme Court.

PPH and the ACLU already filed an appeal of the ruling and will seek a temporary injunction of the law from the Iowa Supreme Court, according to the Gazette.

“If this law indeed goes into effect, it will leave Iowa with one of the most restrictive abortion laws in the country,” Suzanna de Baca, president and chief executive officer of Planned Parenthood of the Heartland, said in a statement, as reported by the Gazette.

“This unconstitutional disregard by lawmakers—including Gov. Kim Reynolds —for women and their right to abortion access, is unacceptable. We will fight with every available resource until we ensure that all women have access to the care they need.”

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