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Iowa Supreme Court Blocks GOP’s Forced 72-Hour Abortion Waiting Period

Jessica Mason Pieklo

The decision holds that the anti-choice GOP law violates the equal protection and due process guarantees of the state's constitution.

The Iowa Supreme Court on Friday ruled a law mandating a 72-hour waiting period for abortion patients violates the Iowa Constitution. 

The Republican-backed SF 471, which then-Gov. Terry Branstad (R) signed in May 2017, requires patients to certify 72 hours in advance of obtaining abortion services 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. Attorneys on behalf of Planned Parenthood of the Heartland (PPH) sued to block the law, arguing that the GOP measure infringed on patients’ due process rights protected by the Iowa Constitution because it imposes an undue burden on their right to obtain abortion care.

On the same day that Branstad signed the bill, the Iowa Supreme Court issued a temporary injunction blocking its enforcement while the case proceeded to trial. 

Following a two-day trial in which attorneys representing PPH produced witnesses and an affidavit of a domestic violence expert to detail the harm that would follow enacting the law and the state called no witness, Iowa Fifth Judicial District Court Judge Jeffrey Farrell upheld the mandatory delay, ruling it did not violate the Iowa Constitution. PPH appealed that decision to the Iowa Supreme Court. Enforcement of the law was stayed while the appeal proceeded. 

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The Iowa Supreme Court on Friday reversed Farrell’s order in a 5-2 decision authored by Iowa Supreme Court Chief Justice Mark Cady. 

“The state has a legitimate interest in informing women about abortion, but the means used under the statute enacted does not meaningfully serve that objective,” Cady wrote. “Because our constitution requires more, we reverse the decision of the district court.”

The forced 72-hour waiting period is part of a law banning most abortions in the state after 20 weeks of pregnancy. The 20-week ban is in effect and isn’t part of the legal challenge.

“We are pleased that the Iowa Supreme Court saw this law for what it was — a ploy to make safe, legal abortion less accessible,” said Planned Parenthood Federation of America Executive Vice President Dawn Laguens in a statement following the opinion. “This win means one less obstacle for patients who already face systemic barriers to care because of racist and discriminatory policies. This is a critical win for women’s rights and freedom to control their bodies, as the constitutional right to safely and legally access abortion hangs in the balance. Make no mistake, the right to abortion in this country is on the line and we will not back down from this fight.”

This is the first time since 2015 the Iowa Supreme Court has ruled on a major abortion rights case. In 2015, the justices unanimously upheld the use of telemedicine abortions following efforts by the state medical board to ban the practice, ruling such a ban would create an undue burden on patient’s constitutional rights. 

In its challenge to the mandatory abortion care delay, Planned Parenthood argued that Iowa is among the states that have found the right to choose an abortion warrants greater protection under the state’s protection than on the federal level. Iowa Solicitor General Jeffrey Thompson, defending the law on behalf of the state, argued that choosing to terminate a pregnancy is not a fundamental right under the Iowa Constitution. Thompson argued that protecting “unborn life” is a fundamental interest of the state. 

A majority of the justices on the Iowa Supreme Court disagreed. 

“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,” Cady wrote.

“The imposition of a waiting period may have seemed like a sound means to accomplish the state’s purpose of promoting potential life, but as demonstrated by the evidence, the purpose is not advanced. Instead, an objective review of the evidence shows that women do not change their decision to have an abortion due to a waiting period.”

Justices Edward Mansfield and Thomas Waterman dissented, arguing the law should be upheld and that the Iowa Constitution no more protects abortion rights than the federal government does.

Mansfield is a rumored candidate to replace Justice Anthony Kennedy, who announced his retirement from the U.S. Supreme Court on Wednesday. 

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