The Iowa Supreme Court struck down, in a 5 to 2 decision, Iowa’s mandatory 72-hour waiting period before getting an abortion. The way the majority opinion was written one would think Planned Parenthood of the Heartland’s lawyers wrote it.
Chief Justice Mark Cady who wrote the convoluted majority opinion was joined by Justices David Wiggins, Daryl Hecht, Brent Appel, and Bruce Zager. Justice Edward Mansfield wrote a dissenting opinion, and he was joined by Justice Thomas Waterman.
The court ruled that the 72-hour waiting period violated Iowa’s due process clause (Iowa Constitution, Article I, Section 9) and equal protection clause (Iowa Constitution, Article I, Section 6).
Cady wrote the waiting period’s “restrictions on women are not narrowly tailored to serve a compelling interest of the State” and that Iowa’s Constitution “requires more.”
Neither clause in Iowa’s Constitution provides a right to abortion.
Justice Mansfield agrees. He wrote in his dissent, “Neither provision as worded or as originally understood supports a right – let alone a fundamental right – to terminate a pregnancy.”
Due Process Clause
Article I, Section 9 of the Iowa Constitution reads, “The right of trial by jury shall remain inviolate; but the General Assembly may authorize trial by jury of a lessor number than twelve men in inferior courts; but no person shall be deprived of life, liberty, or property, without due process of law.”
What right is being deprived? Also, how is due process applied here? This is not a judicial process; it’s a waiting period. The state of Iowa is not operating outside the law. There is no hearing or procedure involved that could be unfair. It’s just a waiting period, plain and simple, and not even a long one at that.
Mansfield points out the absurdity of this claim. “The majority presumably concludes that a law mandating a 72-hour waiting period for an abortion is a ‘depriv(ation) of…liberty…without due process of law.“
He continued, “This sounds like a contradiction. How can a law deny due process of law? Indeed, our framers would have found the notion of substantive due process as self-contradictory as it sounds.”
Chief Justice Cady said in the majority opinion that Planned Parenthood of the Heartland’s due process claim “rests not upon a procedural defect, but rather upon the existence of a substantively inadequate justification for burdening the ability to obtain an abortion.”
“Substantive due process claims are grounded in our nation’s long history of interpreting the text of the Due Process Clause to ‘impose[] nothing less than an obligation to give substantive content to the words liberty and due process of law,'” he added.
As Justice Mansfield said, this is self-contradictory, and I would add, nonsensical. One could make an argument that any law violates due process under this standard, which is primarily subjective because the majority embraces the “living and breathing” philosophy of interpreting both the Iowa Constitution and U.S. Constitution.
“Our constitution recognizes the ever-evolving nature of society, and thus, our inquiry cannot be cabined within the limited vantage point of the past,” Cady wrote.
Of course not because then you couldn’t create “rights” out of thin air like what was done with abortion in 1973.
“A constitution would not use concepts to express individual rights and guarantees if specificity were needed. At the same time, a constitution would express individual rights and guarantees with specificity if concepts could only express those rights and guarantees associated with the concept at the time,” Cady adds.
Like the right to life?
Article I, Section 1 of the Iowa Constitution says, “All men and women are, by nature, free and equal, and have certain inalienable rights – among which are those of enjoying and defending life…” (emphasis mine).
Let’s look at the due process clause, “no person shall be deprived of life…without the due process of law,” (Article I, Section 6 of the Iowa Constitution, emphasis added).
Do you know who’s due process is genuinely being violated here? The unborn child’s.
That argument is completely overlooked. Instead, Cady instead spouts back the Planned Parenthood talking points that the same-day process is thorough (so Planned Parenthood says). It’s a still same-day process that does not allow one to consider the gravity of the decision.
Mansfield in his dissent noted that Iowa has waiting periods for some things, such as:
- A 72-hour waiting period after birth for adoption.
- A 90-day waiting period for divorce.
- A three-day waiting period for marriage.
“All of these waiting periods implicate fundamental constitutional interests in marriage and parenting. The legislature mandated waiting periods to ensure these important decisions were made after time for reflection. No one can reasonably question the legislature’s power to impose these waiting periods before Iowans begin or end a marriage (well, you could if you believe the state shouldn’t be involved in marriage, but I digress) or give up a newborn baby for adoption. So why can’t the legislature impose a waiting period before an abortion?” Mansfield asked.
They should be able to after all a life is at stake. It’s not unreasonable to ask people to take more than just a few hours to consider this regardless of how many may change their minds.
Mansfield also notes that a majority of courts, including the U.S. Supreme Court, have upheld abortion waiting periods as constitutional under both state and the U.S. Constitution.
But no, our Court knows better.
We should be more considered that a minority of women have to travel more than 50 miles to an abortion clinic and that they may have to spend a little more money to come back or take more time off of work.
Sorry that they’re inconvenienced, and that is what this is, an inconvenience before they can kill their child. A 72-hour waiting period does not deprive anyone of liberty.
Equal Protection Clause
Article I, Section 6 of the Iowa Constitution reads, “All laws of a general nature shall have a uniform operation; the General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.”
What privileges or immunities are being granted here? It’s a waiting period.
Cady writes, “Equal protection of the law now prevents governments from ‘den(ying) to women, simply because they are women, full citizenship stature – equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capabilities.'”
Ok, still not seeing the argument. It’s a waiting period.
Cady continues, “Implicit in the concept of ordered liberty, we recognize today, is the ability to decide whether to terminate a pregnancy. Profoundly linked to the liberty interest in reproductive autonomy is the right of women to be equal participants in society.”
I’m still not seeing it. It’s a waiting period.
“Autonomy is key in addressing the equal protection claim presented in this case. Autonomy is the great equalizer. Laws that diminish women’s control over their reproductive futures can have profound consequences for women,” he writes.
That’s true, but it is a waiting period. 72-hours, that’s all. Good night. Rarely can anyone get a medical procedure done the same day (unless it is an emergency), yet with abortion, you can. This waiting period is uniformly applied to all pregnant women should they choose to get an abortion. I am so sorry that men don’t have wombs.
“When a state action infringes upon a fundamental right, the guarantee of equal protection of the law requires the state to demonstrate the action is narrowly tailored to serve a compelling government interest,” he adds.
Abortion = “a fundamental right” but the fundamental right to life for an unborn child does not exist according to Cady’s logic.
Mansfield points to Iowa’s founders to point out the problem with their logic.
“(T)he Iowa Constitution – including article I, section 9 and article I, section 6 – became effective on September 3, 1857. Six months later, on March 15, 1858, the general assembly adopted a law making abortion a crime under all circumstances, ‘unless the same shall be necessary to preserve the life of such woman,'” he writes.
“Abortion remained generally illegal in Iowa until Roe v. Wade was decided over one hundred years later. Given this timing, i.e., the fact that a ban on abortion was adopted right after the constitution became effective, it is difficult to conceive that a legislatively mandated waiting period for abortion would have violated the original understanding of either article 1, section 9 or article I, section 6,” he added.
Of course, it didn’t, but words and original intent don’t matter if you think the Iowa Constitution is a living document subject to change on the whims of culture.
The majority, since they found the waiting period unconstitutional, did not need to weigh in on the equal protection clause argument. They have an agenda, and they have to carry the abortion industry’s water.
Mansfield shares this concern, “I wonder if the majority is laying groundwork… perhaps a stepping stone toward a ruling that Iowa’s Medicaid program must fund abortions.”
I sense that coming.
“In lieu of citing supportive case law, the majority asserts that without the benefit of the majority’s ruling, women may ‘never fully assume a position in society equal to men, who face no such similar constraints for comparable sexual activity.'” Mansfield wrote.
“This statement, to my mind, epitomizes the difficulties with the majority opinion. I am confident that many Iowans wholeheartedly agree with the court’s statement. However, I am equally confident many Iowans are offended by it. Is it really the basis on which the court wishes to render an enduring constitutional decision?” he asks concluding his dissent.
Apparently so.
What’s an ‘undue burden’?
In Planned Parenthood v. Casey, U.S. Supreme Court Justice Anthony Kennedy, who wrote the majority opinion, wrongly upheld Roe v. Wade, but did say states had the right to regulate it provided those regulations did not place “an undue burden” on the woman seeking an abortion.
Thus we have the undue burden standard that is applied to any abortion restrictions that is litigated in court.
Cady, in the majority opinion, made this outrageous claim:
Ultimately, adopting the undue burden standard would relegate the individual rights of Iowa women to something less than fundamental. It would allow the legislature to intrude upon the profoundly personal realms of family and reproductive autonomy, virtually unchecked, so long as it stopped just short of requiring women to move heaven and earth.
This hyperbole is nonsense. It is a 72-hour waiting period, and as we mentioned earlier, there are plenty of instances where the legislature has implemented a waiting period in the realm of family autonomy.
The U.S. Supreme Court, in the Planned Parenthood v. Casey, upheld Pennsylvania’s 24-hour waiting period. As mentioned before a vast majority of state courts have supported waiting periods. Only two state supreme courts have ruled against it, and one decision, Tennesee’s, was overruled by a constitutional amendment.
No reasonable person thinks this is an undue burden. Mansfield points out all of the legal precedents that are ignored by their statement.
“I am puzzled by this hyperbole. It ignores the fact that Casey struck down one of Pensylvania’s laws – a spousal notification provision – under the undue burden test, even though the law had a number of exceptions… It ignores the fact that two abortion waiting periods have been enjoined by federal district courts under the undue burden test… It ignores the fact that our court has repeatedly struck down laws in other areas even when applying a more forgiving standard than the undue burden test,” he wrote.
Of course, they ignore all of that because they are carrying the abortion industry’s water.
It is blatantly one-sided.
As Chief Justice Cady made his argument, he accepted Planned Parenthood’s statements and testimony at face value and was dismissive of the state’s case.
He accepted their description of their purpose as an organization, in fact, his description of Planned Parenthood of the Heartland could have been lifted directly from their promotional material.
He was dismissive of studies that showed some women changed their mind and employed fuzzy math to diminish the numbers further.
He made medical claims (I didn’t realize he held a medical degree) buying the applicants’ claim that abortion is safe. Cady wrote:
Abortion is a safe medical procedure comparable to other office gynecological procedures such as endometrial biopsies, intrauterine device insertions, and cervical cone biopsies. Abortion is a safer procedure than many office medical procedures, including colonoscopies. The risk of death from continuing a pregnancy to childbirth is fourteen times greater than that of an abortion procedure.
There were no footnotes and no references cited. It is provided in his argument as though what he said is an undisputed fact.
It is not. He parrots Planned Parenthood talking points here or perhaps gets his ideas from The Huffington Post. Maybe he got his “facts” from a misleading study on abortion safety. He certainly did not take into consideration the mental health risks women who get an abortion face. His statement about childbirth being riskier than abortion ignores research that demonstrates the opposite.
Not only that, but he shows no consideration of the state’s concern.
Mansfield writes in his dissent, “there are two profound concerns – a woman’s autonomy over her body and human life – has to drive any fair-minded constitutional analysis of the problem… Regrettably, instead of admitting there are two weighty concerns, the majority eloquently describes one of these concerns while diminishing the other… As a practical matter, it equates opposition to abortion with opposition to gambling. To be clear, many if not most abortion opponents view it as ending a life.”
That is true. There was no consideration of the state’s concern and pro-life concern; there was never any intent to consider it.
Conclusion
This, obviously, does not bode well for the heartbeat abortion ban when it comes before the Iowa Supreme Court. The Court has demonstrated it will jump through legal and linguistic hoops to ensure that abortion-on-demand will go on unfettered in the state.
Even if Roe v. Wade is overturned this will still be a problem since the Iowa Supreme Court is dismissive of federal precedent allowing restrictions on abortion. I don’t see them reversing themselves since lifting Roe v. Wade would take the battle over abortion to the state level. (Update: Upon further consideration, I’m not entirely sure what happens in Iowa if Roe is overturned, I’m going to look into that further.)
They want to have supremacy; Cady took great care in explaining the Court’s power as they understood it. This leaves us with just a few remedies since we know the judiciary will never side with us.
- The Iowa Legislature needs to take authority back. Under the Iowa Constitution, the Iowa Legislature is the strongest branch. They need to start acting like it. It is time for them to exercise their Article V, Section 4 powers under the Iowa Constitution that allows them to restrict the Court’s jurisdiction. I understand that this is controversial in some circles, but we need to have that conversation. The Iowa Supreme Court has proved itself not to be a fair arbiter in these matters.
- We need changes in our constitution that 1. upholds the sanctity of life for the unborn so that the courts can’t dismiss it, and 2. reforms the way judges are appointed. The Governor should not be limited to choices given to him or her by an unelected board, and the Iowa Senate should have to confirm those judges. We the People should have a greater say through our elected officials and the front end of the process. Right now the Iowa Bar Association has more power than the taxpayers. That is wrong. What’s good at the federal level should be good for Iowa, but it will require a constitutional amendment.
- When Iowa Supreme Court Justices are up for retention, in particular, those involved in the majority decision, we need to vote them off the bench. Unfortunately, there are no members up for retention in 2018. We can’t have a short memory.
Read the whole ruling:
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