Health Law

3 justices on this state's top court targeted after deadlock prevents abortion ban from taking effect

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Iowa Supreme Court

“In our view,” wrote Iowa Supreme Court Justice Thomas D. Waterman, “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 into effect.” Photo from Shutterstock.

Three justices on the Iowa Supreme Court who voted against reviving an abortion ban are being targeted by the leader of a Christian conservative group.

The top Iowa court split 3-3 Friday on whether to revive the 2018 fetal heartbeat law, leaving intact a 4-year-old district court decision that blocked it from taking effect. A seventh justice had recused herself.

Bob Vander Plaats, the head of the Family Leader, tweeted Saturday that the three justices who voted against reviving the abortion ban should resign, be impeached or be ousted, the Iowa Capital Dispatch reports.

The blocked law would have banned abortions after six weeks of pregnancy—with some exceptions. As a result of the split decision, abortion remains legal in Iowa through 20 weeks of pregnancy.

The state district judge who blocked the fetal heartbeat law in 2019 ruled that it was unconstitutional under an undue burden standard used to evaluate abortion regulations in Iowa.

The district judge’s decision was never appealed and represented a final judgment, according to Iowa Supreme Court Justice Thomas D. Waterman. Last year, the state of Iowa sought to dissolve the district judge’s injunction because of a substantial change in the law. The district judge refused, saying the law would still fail under the undue burden standard.

Waterman explained why he thought that the Iowa Supreme Court should reject the state’s request to reinstate the law.

“In our view,” Waterman wrote for himself and two other justices, “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 into effect.”

Waterman said the Iowa legislature could enact a new fetal heartbeat law. In that circumstance, “the unprecedented jurisdictional and procedural issues presented in this case fall away,” Waterman said.

Writing for himself and two others, Justice Christopher McDonald said the Iowa Supreme Court in June 2022 overruled its earlier 2018 decision that said abortion was a fundamental right. Iowa justices in the splintered 2022 decision did not agree, however, on the standard to be used when evaluating abortion regulations.

McDonald argued that the district judge who considered the fetal heartbeat law should have used rational basis review under controlling precedent that remained in effect.

“It is almost universally accepted (except by my colleagues today) that courts have inherent authority to modify or dissolve a permanent injunction based on changes in fact or law without regard to the passage of time,” McDonald wrote.

The Associated Press, Reuters, the Washington Post and the New York Times covered the Iowa Supreme Court decision, while How Appealing links to additional coverage.

All the Iowa Supreme Court justices are Republican appointees, according to the New York Times. They are subject to retention elections.

Four other state supreme courts have split in 2023 on whether their state constitutions protect abortions, according to the New York Times. In South Carolina, the top court ruled that the right to abortion was protected. North Dakota and Oklahoma’s top courts found constitutional protections in some instances. Idaho’s top court found no protection for abortions.

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